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ARCHIVE -- APR. 2000
(III)
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April 28-30 --
Degrees of intimidation. Diploma mills (self-proclaimed
universities willing to mail out meaningless degrees, in exchange for what
is often substantial "tuition") have flourished lately and efforts to rein
them in have foundered, writes a specialist in the field. "In 1982
the American Council on Education announced an impending, hard-hitting,
and uncompromising book (I hoped) on fake schools. But by the time Diploma
Mills: Degrees of Fraud finally emerged in 1988, the lawyers had
marched in, and the book was, at best, soft-hitting
and compromised. The authors apologized for lack of specificity (not
a single currently operating fake was named) because of 'the present litigious
era.'
"Yes, schools do sue. ... I've been sued eight times by schools ....
Only one ever got to court, and that was thrown out by the judge, as frivolous,
in minutes. But there is a cost in both dollars and, my wife will confirm,
despondency." (John Bear, "Diploma Mills: The $200 Million a Year
Competitor You Didn't Know You Had", University Business, March)
(via Arts & Letters
Daily).
April 28-30 --
Collateral damage in Drug War. Authorities earlier
this month arrested Dorothy Jean Manning, 66, Ramona Ann Beck, 61, and
Armitta Mae Granicy, 59, for selling iodine crystals without keeping tabs
on buyers' names and vehicle IDs as required by law. All three women work
at Granicy's Feed Store in rural Lancaster, Calif. and have been charged
with repeatedly selling the crystals to undercover agents despite warnings.
Ranchers use iodine crystals to treat hoof ailments in livestock, but they
are also a so-called "precursor chemical" in the production of methamphetamine.
(Reason Express, April
17 -- third item). (Update: see letter to the editor, May
18, 2001). And Denver's famous bookstore, the Tattered Cover,
is locked in a courtroom battle with the North Metro Drug Task Force over
demands that it disclose the identity of the purchaser of two books found
in an Adams County residence which also contained a methamphetamine lab;
the books, apparently bought from the Tattered Cover with a credit card,
contained instructions for manufacturing the drug. "On April 5, five
plain clothes Denver police officers showed up at the bookstore with [a]
search warrant and insisted on conducting a search" but agreed to wait
until a court resolved the situation. (Cheryl Arvidson, "Denver bookstore's
sales records sought in drug-lab investigation", Freedom Forum, April 20).
Update Oct. 27-29: judge orders
store to hand over records.
April 28-30 --Legal
Times (Washington, D.C.) "Web of the Week".
One of the nicest encomia we've received lately makes us anxious to live
up to it. "Lawyers and litigation have been lampooned at least since
Dickens. Now Walter Olson of the Manhattan Institute, a longtime
critic of the excesses of litigation, has launched overlawyered.com, a
Web site that gathers daily nearly every story of this type from the media
and gently skewers the profession. It remains just this side of acerbic,
which actually makes the site more effective. Excessive fees, silly cases,
outlandish extenuations, and my favorite, ridiculous warning labels, abound
here. Read it and laugh, but take much of it to heart." (Jonathan
Groner, Legal Times, April 10).
April 28-30 --
Updating Jane Austen. If the author were writing
today. ... "After recovering memories
of childhood abuse by their father, the novel ends with the Bennet
sisters awash in cash, their futures secure, and their romantic lives no
longer held in thrall to the economic oppression of the patriarchy."
(Mark Lasswell, "Get real, Jane", Women's Quarterly, Winter
2000 (via The Occasional)).
April 27 -- Sock
puppet lawsuit. Internet pet supply enterprise Pets.com
has filed a federal lawsuit against Robert Smigel, a writer with NBC's
"Late Night With Conan O'Brien", over Smigel's creation of "Triumph the
Insult Comic Dog", a satirical character reminiscent of Pets.com's own
highly visible sock-puppet mascot. "'Triumph is a rubber-dog that
... regularly uses vulgarity, insults both the humans and other dogs around
him and often conducts physical attacks of a sexual nature on female dogs,'
the complaint says." ("The sock that roared", TVBarn, April
25; "Pets.com socks it to 'Late Night' writer", AP/FindLaw, April 26,
link now dead).
In more news from the world of doll litigation, Barbie-maker Mattel,
Inc., has sued the prominent San Diego law firm of Luce, Forward, Hamilton
& Scripps for slander and libel. The case arises out of a longstanding
legal dispute between the giant toy company and one of Luce Forward's clients,
the Collegiate Doll Co., over sales of dolls by the latter company that
allegedly infringed on "college cheerleader" versions of Barbie.
Mattel now claims to have been falsely accused of illegalities and unethical
conduct in an article published in Luce's newsletter and on its
website. Previously, Mattel successfully sought judicial sanctions
against a Luce partner who, having weathered earlier rounds of litigation
involving the curvaceous plaything, "began to tout himself as an expert
in Barbie disputes," and whose sanctionable misconduct allegedly included
tossing Barbie dolls during a videotaped meeting of counsel. (Gail
Diane Cox, "Barbie's Backers Smack Firm With Slander Suit", CalLaw,
March 2).
April 27 -- Let's
go to the tape. "Brian Lopina, a lobbyist for the Association
of Trial Lawyers of America [recently broke] the Golden Rule of Washington
Voicemail [, which] states that the only message you should ever leave
on anyone’s machine is Call me .... Lopina tried to intimidate Sen. Rod
Grams, the Minnesota Republican, out of backing a bill that would scrutinize
asbestos suits more carefully. ... [He] warned Grams that ATLA was bankrolling
a set of highly effective ads against senators (like Montana Republican
Conrad Burns) who weren’t dancing to the lawyers’ tune. He offered to send
over a transcript of the ads, 'so you'll see exactly how hard-hitting this
stuff is. I think you really ought to get off this bill.' Lopina claimed
to have been calling Grams as a 'friend,' and ATLA denied that he’d made
the calls at its request. Yeah, sure -- he works as a lobbyist but makes
threatening calls about legislation in his spare time." (Christopher
Caldwell, "Tele-Grams", New York Press, April
19-25). The Wall Street Journal beat us to this one with
their editorial Tuesday: "The New Commissars", April
25 (online subscribers only)). See also Dane Smith and
Greg Gordon, "Grams said lobbyist tried to 'blackmail' him", Minneapolis
Star-Tribune,
April
11 (reprinted at Coalition for Asbestos Resolution site).
April 27 -- Legal
Intelligencer sees Fidel's sunny side. Whatever
divergent views we may hold on the armed seizure and prospective return
of Elian Gonzalez, you'd think we could all at least agree in execrating
the brutal dictator whose misrule the little boy and his mother were fleeing.
But no, even at this late date, the old monster has his defenders -- including,
it seems, some in the legal profession. Last month Philadelphia's
couldn't-be-more-respectable Legal Intelligencer ran a kissy account
of how fourteen American lawyers went to Cuba on a "fact-finding" mission
sponsored by the far-left National Lawyers Guild, met the great man himself,
and came back singing his praises. "There is a sense of respect for
other human beings there," effused attorney Joshua Rubinsky. "A respect
you don't see [in the United States] in terms of labor relations."
Queasy yet? There's much more. "Fidel Castro is a lawyer,"
the account begins (which, for the record, is meaner than anything this
site has ever said about lawyers). "He graduated from Cuba's Havana
University with a law degree in 1950, and, although he never practiced
law, his political influence has helped shape Cuba's legal system" -- "political
influence" being here a remarkable euphemism for the Communist strongman's
tendency to murder or jail opponents and critics. The story proceeds
to quote attorney Gail Lopez-Henriquez, who like Mr. Rubinsky practices
labor law in Philadelphia, as saying: "People we met really believe that
they have a system that has some very important principles and structures
that protect people's rights, dignity and material needs." The Legal
Intelligencer never sees fit to quote even a single critic of the Cuban
regime, or indeed anyone outside the admiring circle of trip-goers.
(April White, "Meeting Castro Highlight of Study Trip To Cuba for Group
of U.S. Labor Lawyers", The Legal Intelligencer, March 16).
April 25-26 --
New page on Overlawyered.com: Free speech & media law. Newest
addition to our collection of topical pages covers libel, slander and
defamation suits; the use of litigation to suppress or intimidate criticism
and political opposition; harassment law's effects in curbing email jokes,
cartoons and workplace banter; efforts to hold makers of shoot-'em-up movies
and videogames liable for damages when their customers commit acts of violence;
regulation of campaign speech; copyright, broadcast law, and other topics
relating to free expression and media law. Also: we've updated
the desktop links on the front page's left column, dropping some less-used
links, adding a half-dozen new, and creating a new section for "Science/skepticism"
links, most of which had previously been found in "Diversions".
April 25-26 --
Celera stockholders vent at Milberg Weiss. Lively discussion
breaks out on Motley Fool investment
bulletin boards concerning suit filed by class-action
filers Milberg Weiss against genome-mapping
pioneer Celera after stock price drop (suit
announcement). Most of the participants are decidedly unhappy
about the suit's filing, and their email protests succeeded in drawing
some response from Milberg Weiss attorneys. Some jumping-off points
to browse the discussion: messages #13466,
13594
(cites this site), 13775,
13806,
14041
(view
threads).
April 25-26 --
Preferred seating. ADA
lawsuits against movie theaters proliferate, with a D.C. law firm last
week seeking class-action status on behalf of millions of hearing-impaired
moviegoers against two of the biggest cinema chains over their failure
to install expensive captioning and other assistive technology. ("Hearing-impaired
moviegoers sue Lowes [sic] and AMC", Bloomberg/Boston Globe, April
21, link now dead). In Oregon, where activists filed a suit earlier
this year seeking mandatory captioning (see February
19-21 commentary), they've now filed another one charging that it's
unlawful for wheelchair users to be seated in front where they may be obliged
to crane their necks at an uncomfortable angle (Ashbel S. Green, "Regal
Cinemas sued over seats", The Oregonian (Portland), April
12). The Fifth Circuit, however, recently turned two thumbs down
on a similar lawsuit out of El Paso. (Nathan Koppel, "Court Failed
to Recognize Disabled Movie Patrons' Difficulties, Expert Says", Texas
Lawyer, April 13).
April 25-26 --
Toronto coach: ich kann nicht anders. Toronto Raptors
basketball coach Butch Carter has filed a defamation
lawsuit against departed player Marcus Camby, who recently described
Carter as a "liar" and unpopular with the team. Camby, who alleges
that Carter assured him he'd be kept on the team just before the front
office traded him to the New York Knicks, said, "No one likes him and no
one wants to play for him. That is the kind of guy that he is." "I'm
responding to an article of untruths in the only manner I can," said Carter,
on the question of why he was suing. "That's through the courts."
You might think he's overlooking at least one other manner of responding
short of litigation, namely airing his side of the story in the press.
Carter hasn't been shy about doing that in the past: in an upcoming book,
he alleges that one of his own former coaches back at Indiana is a "bully"
and "self-serving coward" and has used racial slurs. ("Carter would
withdraw suit for apology", ESPN, April
23; "Raptors' Carter Defends Camby Suit", Yahoo/AP, April 24; "Carter
claims Knight used racial slur", AP/ESPN, April
14). Update: Carter soon dropped the suit (see May
4 commentary).
April 25-26 --
Gray sameness of modern playgrounds. "Is there anything
lamer than these new 'safe' playgrounds?
Where is the fun in the Big Hollow
Plastic Cube with Holes Cut in It? Or the Three Axles with Triangular Plastic
Spinning Things for Playing Tic-Tac-Toe? ... And yet overprotective surrogate
mothers from the National Program for Playground Safety insist
that still not enough is being done to protect the children. ... Give me
spinal injury inducing monkey bars over this modern plastic junk any day."
(Eigengrau weblog, April
20 entry).
April 25-26 --
Thought for the day. "The history of censorship
is a history of folly and cruelty" -- Judge Richard Posner in Miller
v. Civil City of South Bend, Seventh Circuit, 1990; quoted in the
substantial new profile of him in Lingua Franca (James Ryerson,
"The Outrageous Pragmatism of Richard Posner", May).
April 25-26 --
Regulation by litigation: what to do? Some ideas that
might curb courts' and trial lawyers' penchant for acting as surrogate
legislatures, including a "Model Separation of Powers Act", a Sunshine
Act requiring that governments disclose the manner in which they hire outside
attorneys, and an act making clear that government can't oust traditional
defenses to liability in the course of filing third-party lawsuits over
Medicaid reimbursement and the like (assuming governments should be filing
such suits at all). (Victor E. Schwartz and Leah Lorber, "Regulation
Through Litigation Has Just Begun: What You Can Do To Stop It", "Briefly..."
Series, National Legal Center for the Public Interest, November
1999 (PDF)).
April 24 -- Scented
hair gel, deodorant could mean jail time for Canadian youth.
"A Halifax-area teenager may face criminal
charges for wearing Dippity Do hair gel and Aqua Velva deodorant to school
after his teacher complained to the RCMP [Royal Canadian Mounted Police,
Mounties] about his fragrant abuse of the school's no-scent policy.
Gary Falkenham, 17, has twice been suspended from Duncan MacMillan High
School in Sheet Harbour, N.S., for violating the school's strict policy
banning perfumes, aftershaves and scented hairsprays and deodorants."
(Shaune MacKinlay and Adrian Humphreys, "Student may face criminal charge
for wearing smelly hair gel", Halifax Daily News/National Post,
Apr. 19. More on the "scent-free"
movement, which has made Halifax its poster city: Larry M. Greenburg, "One
City Turns Up Its Nose Against the Use of Perfume", Wall Street Journal,
July
28, 1999, reprinted at Junk Science;
Betty Bridges, "Halifax Leads the Way With Fragrance-Free Policies", Flipside,
Sept.
1999; Dalhousie U. policy,
Environmental
Health Network, Fragranced
Products Information Network).
April 24 -- Court
rejects "telephone sex slave" charge. A federal judge
has dismissed Doris Ford's lawsuit charging that Hartford businessman and
power broker Arthur T. Anderson had coerced her into being his highly paid
"telephone sex slave". Ms. Ford did not allege that the couple had
had physical contact since 1977, and the judge said that even if it were
true that the two had more recently engaged in sexually oriented telephone
conversations and that she had received sums in excess of $150,000 from
Mr. Anderson, the relationship could at most be described as contractual.
Anderson's lawyer says his client had made payments to Ford for years to
keep her from revealing their long-ago extramarital relationship.
Ms. Ford's lawyer, Norman A. Pattis, conceded that his claim invoking the
federal Violence Against Women Act
was "creatively pleaded and probably on the cutting edge." (Mark
Pazniokas, "Judge Rejects Sex Slave Suit", Hartford Courant, Apr.
21, link now dead).
April 24 -- Less
suing = less suffering. New England Journal of Medicine
study on crash injuries before and after Saskatchewan's introduction of
no-fault insurance finds "the elimination of compensation for pain and
suffering is associated with a decreased incidence and improved prognosis
of whiplash injury." Not only did fewer people claim whiplash under
the no-fault system, but no-fault's much faster resolution of claims appeared
to be strongly correlated with faster recovery, less intense pain and fewer
depressive symptoms. (J. David Cassidy and other authors, "Effect
of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance
Claims for Whiplash Injury", New England Journal of Medicine, April
20). A related editorial in NEJM calls the findings "dramatic"
and adds: "An obvious concern is whether this change simply forced severely
injured patients to suffer in silence without appropriate compensation
for ongoing impairments. Several considerations suggest that this explanation
is unlikely." The medical harm
done by the fault system, the editorialist proposes, is not so much in
encouraging conscious malingering as in generating excessive medical attention
and overly alarmist diagnoses that can become self-fulfilling. The
editorial also cites studies from Australia and Lithuania suggesting that
the legal environment has a profound impact on the amount of perceived
pain and disability experienced by whiplash sufferers ("Pain
and Public Policy"). Update: trial lawyers' response (see June
26).
April 24 -- Maryland:
knowledge, notice not needed to sue landlords over lead.
By a 4-to-3 margin, the Maryland Court of Appeals has ruled that apartment
owners can be made to face personal-injury claims on behalf of children
who ingest lead paint in their
units regardless of whether the tenant ever complained about the paint
or asked that it be corrected, and regardless of whether the owner knew
there was a hazardous condition. The decision overruled a Baltimore
Circuit Court jury decision and is expected to open the gates to more widespread
legal action against building owners. (Jim Haner, "Landlords can
be liable, appellate court rules", Baltimore Sun, Apr. 21) (more
on Maryland and on lead-paint litigation: see Mar.
15, Oct. 19 commentaries).
April 21-23 --
The unconflicted Prof. Daynard. On January 8 of this year
the British Medical Journal published an article entitled "Tobacco
litigation worldwide" by Prof. Richard Daynard of Northeastern University
School of Law and two co-authors (Clive Bates of Action on Smoking and
Health in London, and Australian barrister Neil Francey). Prof. Daynard
is by far reporters' favorite academic to call when they're looking for
a quote supportive of lawsuits against cigarette
makers, and his BMJ article is very much in line with the drift
of his previously voiced opinions: it praises such lawsuits as a "productive
and promising strategy" for public health, and deplores as "unfortunate"
the disapproving attitude toward such lawsuits taken by British courts.
So far, so routine. But then at the end of the article appears the
following notice: "Competing interests: None declared."
No competing interests declared? Not any?
Daynard directs the Tobacco Control
Resource Center & Tobacco Products Liability Project, and from
the way he's been described in countless press clips over the years (samples:
coverage originating in the Washington
Post, L.
A. Times, AP),
you might conclude that he's contented himself with rendering whatever
assistance he can to such suits as a kind of cheerleader from the sidelines,
with nothing at stake beyond ideological zeal. So it might have come
as a distinct surprise when it was reported in late 1998 that for some
time he'd been (in his own view) the owner of an actual contingency share
in moneys to be legally extracted from tobacco companies. In December
of that year, arbitrators awarded a staggering $8.2 billion in fees to
the small band of plaintiff's attorneys who represented the states of Mississippi,
Florida and Texas in the tobacco-Medicaid litigation. At this point
we turn the narration over to the National Law Journal: "Richard
A. Daynard, the Northeastern University School of Law professor who is
a veteran anti-tobacco activist, asked arbitrators for fees for his work
on the Florida case, represented by former brother-in-law David Boies,
of Armonk, N.Y.'s Boies & Schiller L.L.P. [later famed as the Clinton
Justice Department's lawyer in the Microsoft case -- ed.]
The arbitrators ruled that they lacked jurisdiction over his claim, leaving
him empty-handed. Professor Daynard also says Mr. [Richard] Scruggs
promised him 5% of the fees earned by his firm and by the Charleston, S.C.,
firm Ness Motley Loadholt Richardson & Poole P.A. from the state lawsuits.
[emphasis added] Taken together, the two firms represent the lion's
share of states that sued the tobacco industry. Mr. Scruggs said he never
made any such promise." (Bob Van Voris, "Tobacco Road Not Gold for All",
Dec.
28, 1998 - Jan. 4, 1999).
How much would 5 percent of the fees won by the Scruggs and Ness Motley
firms amount to? Last year George estimated that the Scruggs
firm was going to reap more than $1 billion from its state tobacco representation
(see Aug. 21 commentary), and last fall
the Dallas Morning News estimated that the Ness Motley firm was
going to bag more than $3 billion (see Nov.
1 commentary). If both those estimates were borne out, the share
that Prof. Daynard claimed had been privately promised to him might be
reckoned at 0.05 x $4 billion, or $200 million -- relying as we must on
back-of-the-envelope calculations, since far less about this whole topic
is a matter of public record than one would like.
Even today, after such eye-openers, most media reports go right on characterizing
Prof. Daynard using such anodyne formulas as "head of an anti-tobacco clearinghouse"
(AP),
"director of a group that encourages lawsuits against tobacco companies"
(AP again),
and head of a "pressure group" (Sydney
Morning Herald). Yet while relaxed standards may prevail on such matters
in everyday reporting, medical journals are supposed to be different --
a whole lot different. BMJ's policy
on competing interests reaches back to require disclosure of financial
entanglements at any point extending back over five years. Indeed,
in recent years the once cozy world of medical journals has been convulsed
by a series of controversies over whether existing standards on the disclosure
of competing interests have been too lax, as when researchers have been
allowed to opine in journal pages about the efficacy of drug compounds
without revealing pecuniary ties they might have to drugmaking firms ("Beyond
conflict of interest: Transparency is the key", BMJ, August
1, 1998).
One of those who wondered whether BMJ's policy had been lived
up to in the Daynard case was Martha Perske
of Darien, Ct., who wrote editor Richard Smith in January to call some
of the pertinent facts to his attention and ask whether a clarification
would be forthcoming in the journal's pages. Ms. Perske informs this
website that Dr. Smith wrote back agreeing that the question deserved to
be looked into, and promised to get back to her. That was at the
end of February; since then she says she's heard nothing. Dr. Smith's
own August 1998
editorial on the subject states: "If we learn after publication that
authors had competing interests that they did not disclose then we will
tell readers." Later developments: letters, Jan.
31 and Jun.
13, 2001; posts, Aug.
2 and Dec.
17, 2001 (following a persistent campaign by Ms. Perske, and more than
a year and a half after the original article, BMJ finally in Oct.
2001 semi-discloses to readers Daynard's ties to the litigation.)
(DURABLE LINK)
April 21-23 --
Overlawyered schools: three views. Your chances of being
murdered in an American school are
almost vanishingly small, but your chances of imagining yourself living
through an Orwell novel during your time there are not so remote:
* Now that the White House has turned thumbs down on a "preposterous"
plan to set aside a $50 million compensation fund for Columbine
victims, a lawyer for survivors says, "We have no recourse but to file
suit." Vincent Carroll of Denver's Rocky Mountain News reacts: "'No
recourse,' he says, as if suing people who had nothing to do with the shootings
were as unavoidable as breathing. Yet the attorneys' offer to drop their
litigation for a multimillion dollar fund does have the beneficial effect
of eliminating all pretense of what the Columbine lawsuits will be about.
Not some noble quest to uncover the truth, it turns out, but money.
The fund proposal is the proof." Much more worth reading here too
("Lawsuits Take Therapy's Place", April 16)
* Slashdot's Jon Katz pays a visit to the Pinkerton Corp. to protest
the new hotline it runs for North Carolina school-informants (see April
7-9 commentary) and learns "something I hadn't quite grasped: the anonymous
reporting culture is a growing business, now deeply entrenched in the United
States, a result of the victimization movement and lawsuit epidemic rampant
for nearly a generation. Encouraged by federal and local governments, and
many corporate and educational institutions, hotlines operate all over
the country to report date rape, sexual harassment, abuse, and other forms
of brutality and insensitivity. ... Pinkerton itself runs more than 800
such lines. It was inevitable, said Jim, that they would move into schools,
and that Pinkerton would extend its security expertise and set them up.
... I was transfixed by the idea of a democratic country whose response
to social problems was to create an entire new tradition of informing."
(Jon Katz, "Showdown with the Pinkertons", Slashdot.org, April
13)
* Meanwhile, school authorities run into obstacles in the form
of numerous federal laws and court doctrines, notably the 1975 Individuals
with Disabilities Education Act, when they try to discipline, suspend or
transfer students who genuinely do misbehave in serious ways, according
to the Manhattan Institute's Kay Hymowitz ("Get the lawyers out of schools",
New York Daily News, Apr. 16).
