November 10-12 --
Election special: litigating our way into a constitutional crisis?
It isn't often that a New York Times editorial exactly captures
our own reaction to public events, but we wouldn't have changed a word
in this morning's. It expresses concern about the "Gore campaign's
rush to litigation" and the possibility that matters might escalate into
"scorched-earth legal strategy" on both sides of the presidential
contest: "it is worrying that Mr. Gore and a legal team led by Warren
Christopher, the former secretary of state, would announce their support
for a lawsuit while the mandatory recount is still going on and while seven
days remain for the arrival of overseas absentee ballots. It is doubly
worrying that some Gore associates are using the language of constitutional
crisis and talking of efforts to block or cloud the vote of the Electoral
College on Dec. 18 and of dragging out the legal battle into January....
"We take very seriously the fairness issues raised by the ballot confusion
in Palm Beach County and understand the public frustration or even outrage
attendant upon the possibility of having the popular will thwarted by procedural
errors, especially when a presidential outcome hangs in the balance. The
problem is that potential remedies, such as a new election in Palm Beach
County, seem politically unsound and legally questionable. The sad
reality is that ballot disputes and imperfections are a feature of every
election. It will poison the political atmosphere if presidential elections,
in particular, come to be seen as merely a starting point for litigation."
("A Fateful Step Toward Court" (editorial), New York Times, Nov.
10) (reg). Also: "Senator Robert G. Torricelli, Democrat
of New Jersey, warned against getting mired in the courts. 'I want Al Gore
to win the election,' Mr. Torricelli told reporters, 'but more than that,
I want somebody to win this election. There is going to have to be a very
compelling case for anybody to take this into a court of law. It's
a downward spiral. It may begin in Florida, but it can go to other states
and ultimately the presidency of the United States should not be decided
by a judge.'" (R.W. Apple Jr., "Gore Campaign Vows Court Fight Over
Vote, With Florida's Outcome Still Up in the Air", New York Times,
Nov. 10).
(DURABLE LINK)
November 10-12 --
Election special: Nader non grata. Many liberals
are furious with Ralph Nader for
apparently costing Al Gore the election, with the Times rounding
up indignant quotes from union, feminist and environmentalist officials.
"Senator Joseph R. Biden Jr. of Delaware, echoing the sentiments of several
other Democrats on Capitol Hill, said: 'Ralph Nader is not going to be
welcome anywhere near the corridors. Nader cost us the election,' ... Several
Democrats said today that they expected many longtime financial supporters
of Mr. Nader to cut off their contributions to organizations with which
he is affiliated" -- though, frustratingly, the article says nothing about
what kind of supporters these might be (trial lawyers? unions?) thus accommodating
Nader's longtime practice (see June 13,
Andrew Tobias in
Worth) of concealing his sources of financial support (James
Dao, "Angry Democrats, Fearing Nader Cost Them Presidential Race, Threaten
to Retaliate", New York Times, Nov.
9 (reg)). At an election-night gathering at Bill and Hillary
Clinton's hotel room, according to Lloyd Grove of the Washington Post,
publishing figure Harry Evans exclaimed "I want to kill Nader!", to which
Sen.-elect Hillary Clinton replied, "That's not a bad idea!", immediately
followed by a collective cry of "That's off the record!" -- too late (Lloyd
Grove, "The Reliable Source", Washington Post, Nov.
9) "My only hope is that no matter who wins, he will name Ralph
Nader the first U.S. ambassador to North Korea. That way Ralph can spend
his days with another egomaniacal narcissist, Dear Leader Kim Jong Il,
and get a real taste of what a country that actually follows Mr. Nader's
insane economic philosophy -- high protectionism, economic autarky, anti-markets,
anti-globalization, anti-multinationals -- is like for the people who live
there." (Thomas L. Friedman, "Original Sin", New York Times,
Nov. 10)
(DURABLE LINK)
November 10-12 --
Obese soldiers class action. When kicking out servicepeople
for gaining too much weight, the U.S. armed services have insisted that
they return their enlistment bonuses. "Under a federal ruling handed
down last week, they'll be able to sue the Pentagon in a class-action
lawsuit to recover damages." (Justin Brown, "How far can military go
in punishing obese soldiers?", Christian Science Monitor, Nov.
9).
November 10-12 --
Dubious death-penalty science. The Supreme Court in 1993
(Daubert v. Merrell Dow) instructed lower federal courts
to curb the use of unreliable expert testimony in civil litigation, with
highly beneficial results for the quality of justice. Oddly, the
Court has failed to tighten the corresponding rules for capital criminal
cases, although there is evidence that some expert testimony that sends
prisoners to Death Row would flunk a Daubert test, notably testimony
which purports to predict future dangerousness with a high degree of certainty.
"The use of psychiatric testimony in capital cases has also been sharply
criticized by Peter Huber, a fellow at the Manhattan Institute in New York
and a former law clerk for Justice Sandra Day O'Connor whose influential
book denouncing junk science is widely credited with sparking the legal
movement to limit expert testimony." (Henry Weinstein, "Death Penalty
Debate -- Can New Violence Be Predicted?" Los Angeles Times,
Nov. 6). Also: some critics are questioning whether fingerprint
identification, among the pillars of forensics for a century or more, is
really 100 percent reliable as is commonly assumed (Simon Cole, "The Myth
of Fingerprints", Lingua Franca, Nov.).
November 10-12 --
Mickey Kaus on constitutional activism. The Slate
and Kausfiles.com columnist worries that Bush high court nominees
would go too far in striking down Congressional legislation on federalism
grounds, but expresses even more alarm at the implicit activist judicial
philosophy of Vice President Gore, which recalls "my law school days, in
the mid-1970s, when the rights-making machine of legalistic liberalism
was still churning away. ...When Gore babbles eagerly about how 'the Constitution
ought to be interpreted as a document that grows with ... our country and
our history' -- sounding like a guy who went to the first year of law school
for a few months but didn't stick around long enough to realize what a
crock much of it was -- I think back to the liberals-out-of-control paradigm
of my youth." Whole piece is worth a read ("Don't Rush Me! (Part
8)", Slate, Nov.
6) (Kausfiles.com).
November 10-12 --
Did securities-law reform fail? Five years ago Congress
overrode President Clinton's veto and enacted legislation intended to deter
unwarranted shareholder "strike suits" organized by professional class
action lawyers. Since then the number of suits has gone up, however,
and observers differ as to how much good the law may have done and whether
lawyers are finding it easy to evade. (Tamara Loomis, "Securities
Reform: What Went Wrong?", New York Law Journal, Oct. 27; Peter
Catapano, "Who Wants To Be a Fraud Litigant", Wired News, Nov.
8).
November 9 -- Lawyers
descend on Florida. "Over the sunny horizon, a plague
of lawyers is descending on Florida. They officially are 'watching'
the presidential recount. But they
are also scouring every comma and 'whereas' in the Florida code to see
if any loophole can be found to invalidate Florida, or to block such an
action." "Soon after [Florida Secretary of State Katherine Harris]
ordered the recount, lawyers for both candidates flocked to the state,
led by two former secretaries of state -- Warren Christopher for Gore and
James A. Baker III for Bush." Jesse Jackson said black leaders may
sue, while a Bush campaign source told Insight that "[o]ur people
down there are getting the clear impression that the Democrats are searching
madly for anything they can litigate on." (Nov. 8: "Recount continues
in Florida", AP/Northern
Light; Rod Thomson, "The Florida Rules", National
Review Online; Jamie Dettmer, "Election Update: Charges of Cheating
Abound", Insight
Magazine; Raju Chebium, "Election Day allegations could form basis
for legal challenges, experts say", CNN.com;
Paul Singer, "Rev. Jackson hints legal challenge to Fla vote", Virtual
New York; "More Irregularities Alleged", ABCNews.com.)
November 9 -- More
election results. Three Michigan Supreme Court justices
assailed by trial lawyers and other critics "trounced their Democratic
opponents by large margins" (see Nov. 7; David Shepardson,
"GOP projected to win state Supreme Court", Detroit News, Nov.
8). In Ohio, however, Justice Alice Robie Resnick easily held
onto her seat despite outrage from organized business over her authorship
of a decision invalidating liability limits in the state, and a challenger
nearly succeeded in knocking off incumbent Justice Deborah Cook, who had
voted to sustain the reforms (see Oct. 30;
James Bradshaw, "High court unchanged despite negative TV ads", Columbus
Dispatch, Nov.
8). And in a House race
in West Virginia, GOP insurgent Shelley Moore Capito pulled off an upset
to defeat Jim Humphreys, a wealthy asbestos lawyer who had poured more
than $6 million of his own money into his campaign. (see Oct.
23; Karin Fischer, "Capito scores upset", Charleston Daily Mail,
Nov. 8).
November 9 -- Reshuffling
blackjack decks not racketeering. A three-judge
panel has ruled that Atlantic City, N.J. casinos did not violate the federal
RICO (racketeering) law by adopting "countermeasures" against known and
suspected practicers of card-counting at the blackjack tables. At
the "heart of the lawsuit ... was the players' objection to the casinos'
practice of re-shuffling the decks 'at will' whenever a card-counter is
spotted." The plaintiffs included 60 casino patrons, most with card-counting
skills, as well as companies that offer courses in the memory technique,
which allows a customer to increase the chances of beating the house by
deducing the distribution of cards remaining undealt. Federal judge
Morton Greenberg ruled that the claims "are completely insubstantial and
border on the frivolous" because the rules of the New Jersey Casino Control
Commission specifically authorize casinos to reshuffle at will, because
the players "can avoid any injury simply by walking away from the alleged
wrongdoers, the casinos", and because the loss of the chance to make money
at a casino's expense can hardly be characterized as "an injury to business
or property". (Shannon P. Duffy, "Federal Court Finds Players Have
No RICO Claim Against Casinos, The Legal Intelligencer, Nov.
6).
November 8 -- "Opposition
to Indian mascots intensifies". Legal pressure is
intensifying on school systems, universities and professional sports clubs
to drop mascots and team nicknames ("Warriors", "Chieftains", etc.) that
refer to American Indians. In a case now on appeal, "[t]he U.S. Patent
and Trademark Office ruled last year that [football's Washington] Redskins
have no right to trademark the name because it is disparaging to American
Indians." Activists are filing complaints seeking the cutoff of federal
education funds to schools that decline
to drop old team names. "Kevin Gover, who heads the Interior Department's
Bureau of Indian Affairs, applauds such an effort. 'Any school putting
forward a stereotyped image of any race is in violation of civil rights
laws, and I think should lose federal funding,' he said. 'If the
Justice Department won't do it, lots of lawyers like me will do it for
them.'" (Don Babwin, AP/FindLaw, Nov. 6). St. Petersburg
Times columnist Robyn Blumner takes a dim view of using copyright
law to enforce a regime of political correctness in cases like that of
the Washington football club ("Government has no business in Redskins opinion",
July
23).
November 8 -- Loser-pays
activism. The New
Century Project, a fledgling policy group chaired by retiring Rep.
John Kasich (R-Ohio), lists "Legal Reform" among its four central issues
and in particular states:
"We support a so-called "loser pays"
reform which would allow judges to order fee shifting in tort and contract
cases. Such efforts may also include imposing penalties on attorneys, law
firms, or individuals bringing frivolous lawsuits." Its other three
main issues: school choice, elimination of the federal estate tax, and
opposition to Internet taxation.
November 8 -- From
the evergreen file: cancer alley a myth? "Everyone
knows that cancer rates are sky-high along the Mississippi River between
Baton Rouge and New Orleans." Trial lawyers and the "environmental
justice" movement say the area's poor and black residents fall victim
to cancer at high rates because of the large concentration of chemical
refineries along the river. "The only problem is that what 'everyone
knows' just isn't true." According to an article in the Journal
of the Louisiana Medical Society, the incidence of most types of cancer
in the alley does not differ from national incidence, and the few exceptions,
such as high rates of lung cancer in New Orleans, are plausibly attributable
to smoking and other familiar risks. (Michael Gough, "Did You Hear? Good
News from Cancer Alley", Cato Daily, October
15, 1997) (via Junk Science).
The contrary view, which dismisses the incidence comparisons as inept or
corrupt, is widely found around the Web (stored
Google search), including Barbara Koepple, "Cancer Alley, Louisiana",
The Nation, Nov.
8, 1999. Also: there's now a
whole parody page (dhmo.org) devoted to warning against that insidious
substance, dihydrogen monoxide (you might drown in it).
November 7 -- Litigation
reform: what a Democratic Congress would mean. What
would happen to the chances for curbing excessive litigation should the
Democratic Party retake Congress in today's election? To begin with,
key committee posts (as at Judiciary and Commerce) would fall to longtime
trial lawyer allies like Sen. Ernest Hollings (D-S.C.), Sen. Edward Kennedy
(D-Mass.), Sen. Patrick Leahy (D-Vt.), and Rep. John Conyers (D-Mich.).
And then there's Rep. Patrick Kennedy (D-R.I.), who serves as spokesman
for his party as chair of the Democratic Congressional Campaign Committee.
On October 10 the younger Kennedy was making an appearance on CNBC "Hardball"
when host Chris Matthews brought up the topic of excessive trial lawyer
sway within the Democratic Party. Kennedy began his answer by questioning
the patriotism of those who presume to criticize the American litigation
system (graciously suggesting we should "go someplace else and live" if
we don't appreciate it). When Matthews volunteered that he himself
was "a little skeptical of the motives" of trial lawyers, Kennedy suggested
that such a view was really tantamount to opposing the system of trial
by jury. Finally, after Matthews persisted, saying that in his view
"there's probably too much litigation in the country and too many big settlements",
Kennedy simply dismissed the whole subject out of hand, saying his host
must have "been reading the Republican propaganda". The entire sequence
must be read to be fully disbelieved, so we've posted it on
a separate page. Also: don't forget our special
page on trial lawyers and politics.
November 7 -- Michigan
high court races. More coverage of the closely watched
state supreme court races in which three respected conservatives appointed
by Republican Gov. John Engler have been targeted by the state Democratic
Party and its trial lawyer and union allies; partisans of both camps have
run injudicious ads, with the Detroit News calling the latest broadside
from the Democratic side "truly vicious" (Detroit News, Oct.
31; Nov.
1; Nov.
6; Detroit Free Press, Sept.
25; Oct. 21; Oct. 24; Oct. 27; Oct. 28 Markman, Taylor, Young).
Earlier coverage on this site: Aug. 25,
May 9, May
15, 2000; Aug. 6, 1999.
November 7 -- Family
law roundup. Headline says it all regarding bitter
split between ex-spouses over a farm in Somerset, England: "Divorce battle
ends with £840,000 bill" (Ananova.com, Oct.
26). Conflicts over the disposition of frequent flier miles in
divorces and will contests are on the
rise, reports the New York Times. A Dallas woman says she
and her ex-husband "had agreed to split the miles in their divorce settlement,
but that he used the bulk of them before the divorce was finalized. She
said she was shocked when she called American Airlines days after her divorce
and was told that there were only 543 miles left in her husband's account,
down from more than 60,000." Her hubby's lawyer says she should have
asked the judge for a restraining order if she didn't want him to use up
the miles (Jane Wolfe, "A New Thorn in Divorces: Who Gets the Miles?",
New York Times, Oct.
29) (reg). And controversy is simmering over allegedly clubby
relations between family law judges and lawyers in Marin County, Calif.:
was it easier to win your divorce or custody case if you'd attended one
of the judge's big parties, or hired a member of the insider lawyers' group
that called itself FLEAs, for Family Law Elite Attorneys? (Matt Isaacs,
"Odor! Odor in the court!", San Francisco Weekly, Oct.
18).
November 7 -- Update:
judge turns down "Millionaire" ADA suit. A federal
judge ruled last week that the Americans
with Disabilities Act does not prohibit ABC and the producers of the
TV show "Who Wants To Be a Millionaire?" from using a touch-tone phone
system to pre-screen entrants, despite the hurdle that poses to deaf contestants
(see March 24) ("Judge: 'Millionaire'
qualifying round not covered by ADA", AP/Boston Globe, Oct.
30). Update Jun. 21-23, 2002:
appeals court reinstates suit.
November 6 -- Coercive
capitalism? "Nader
is most famous for his attacks on corporations and capitalism. . . .He
does not believe that individuals choose their economic relationships with
these companies. Instead, he argues that they involve some type of force
or compulsion. In short, he equates the coercive power of government with
the economic power of the private sector.
"If you think he's right, try two things. For a whole year, don't send
your money to the IRS, and don't send your money to McDonald's. Don't pay
your taxes and don't buy a Big Mac. See which organization -- the government
or McDonald's -- comes after you with guns, threatening to put you in jail,
seize your property, or even take your life, if you don't give them your
money." (David Parker, "An American Dictatorship: Ralph Nader's Vision
for America", Capitalism Magazine, August).
See also Jay Whitehead, "Ralph Nader: Analog Anachronism", ZDNet, Sept.
1.
November 6 -- Beehive
of legal activity: Utah tobacco fees. Utah is one
of the smaller states, but the Tobacco Fee Arbitration Panel has shown
its usual generosity
and awarded the attorneys who represented it in the state-Medicaid litigation
a whopping $64.85 million. Even this sum is a great deal less than
some of the lawyers feel entitled to recover for working on behalf of the
state; last year one of the law firms involved, Giauque,
Crockett, Bendinger & Peterson, got into a fight with state attorney
general Jan Graham when it filed a lien to claim 25 percent of the state's
settlement, or about $250 million. The Giauque Crockett website says
that the arbitration award "will be a dollar for dollar offset or credit
against the obligation of the state of Utah to pay the Firm under the Firm's
contingent fee contract." South Carolina's Ness, Motley is also sharing
in the Utah payout, as in many other states'. (Reuters/CNN, "Utah
attorneys awarded $64.85 million in tobacco fees", Oct. 25; Judy Fahys,
"Tobacco Tussle, Round II, Graham sues law firms in dispute over settlement,
Salt Lake Tribune, Nov. 25, 1999).
November 6 -- Good
Humor man busted for ringing bell. In Arlington,
Va., it's against the law for a commercial vendor to ring a bell to attract
notice, resulting in a recent wave of law enforcement activity targeting
the venerable Good Humor ice cream man. "That's crazy," one mom says.
"How would the kids know he was there if he didn't ring his bell?"
(Patricia Davis, "In Arlington, Ringing Up the Tickets", Washington Post,
Oct.
30).
November 6 -- Welcome
visitors. Overlawyered.com has recently been
cited on the Eight Kinds
of Ice weblog (November 5 entry) and LinkLog;
won the "MadPick" site award
bestowed by humor columnist Madeleine Begun Kane; figured several times
as a source for the Bonehead
of the Day award; been among Jack Lyne's weekly Editor's Choice Web
Picks (week
of Oct. 2) at Site Selection Online Insider, which serves commercial
real estate execs; been called a "must-visit Web site" by Jacquelyn Horkan,
editor of the "InBox" at Florida Business Insight (August
4) (Associated Industries of Florida); and gotten a mention in the
online Law Society Journal of the Law Society of New South Wales,
Australia (Patrick McAlister, "Outside View", Sept.).
November 3-5 --
Rick & Hillary spar over Indian land claims.
GOP senatorial candidate Rick Lazio has been running radio ads in upstate
New York criticizing the Clinton Administration's support for Indian land
claims that have asserted title to wide swaths of the western part of the
state, mobilizing thousands of property owners to outraged protest (see
Oct. 5 and Oct.
27, 1999; Feb. 1, 2000)
The ads say his Democratic opponent, Hillary Clinton, "refuses to stand
up for the rights of upstate New Yorkers" on the land issue. A spokeswoman
for Mrs. Clinton says the First Lady supports the litigation in general,
which has been backed and assisted by her husband's Justice Department,
but does not approve of the naming of individual homeowners as defendants.
Meanwhile, "[t]he U.S. Interior Department has proposed a new American
Indian land claim case that could affect property owners on more than 100,000
acres of prime suburban and rural land in western New York," this time
on behalf of the Senecas, including large areas in suburban Buffalo.
Jim Mazzarella, of Republican Gov. George Pataki's Washington office, "called
the potential suit 'outrageous' and 'another attack on the homeowners of
western New York.'" (John Machacek, "Indian land claim may hit area",
Rochester Democrat & Chronicle, Nov. 1). Upstate
Citizens for Equality, an organization critical of Cayuga and other
claims, maintains information on its website about the status of Indian
claims in New York and elsewhere. Update Nov.
2-4, 2001: Bush Justice Department reverses position and urges judges
to dismiss individual homeowners from the suit.
November 3-5 --
Just had to donate. This year, as in the past, plaintiff's
lawyers are pouring money into the campaigns
of judicial candidates considered friendly to their interests, and in Mississippi,
as in other states, they prefer to put forward the notion that their spending
is purely reactive, meant to offset the donations that their dastardly
opponents are making in judicial contests (and by their opponents they
tend to mean pretty much every donor to such campaigns other than themselves,
with the possible exception of labor unions). However, that still
doesn't explain why they feel obliged to give their favored judicial candidates
enough money to outspend their opponents two to one. Thus Supreme
Court candidate Percy Lynchard, heavily backed by plaintiffs' lawyers,
has raised $446,000 in his bid to unseat incumbent Justice Kay Cobb, while
Cobb has raised $171,000; and Frank Vollor, whom they are backing for another
seat on the court, raised $402,000 as compared with $217,000 for his opponent,
incumbent Justice Jim Smith. Lynchard's "frenzy" of fund-raising
included $83,000 in contributions on a single day, Oct. 17, "mostly from
plaintiff lawyers", and $276,690 for October as a whole. (Beverly
Pettigrew Kraft, "Judicial gifts hit record amounts", Jackson Clarion-Ledger,
Nov. 1).
November 3-5 --
Gets no kick from football verdict. Last month (see
Oct. 13) a jury awarded $2 million to
Heather Sue Mercer, who sued Duke University for sex bias after being cut
from her walk-on spot as a kicker with the football team. Among those
not thrilled by the jury's action, according to last Sunday's Atlanta Journal-Constitution,
is kicker Tonya Butler of Middle Georgia College, whose dream is to become
the first female given a football scholarship to a four-year school.
"'That's ridiculous,' Butler remembers thinking. 'Not just the money, but
the whole case. I thought it would be thrown out of court. I'm sorry, but
she just got beat out by the other kickers. That happens.'
"'I'm afraid the case has really hurt my chances. Now everyone has to
worry if I'll sue, too, if things don't work out. I hope it hasn't closed
all the doors for me.
"I don't play football to make a statement. I play because I love kicking
and I'm good at it. I shouldn't be penalized because of what someone else
did." She has been calling colleges trying to assure them she wouldn't
sue if things didn't work out, but their interest has waned since the verdict.
In 1997 Willamette University in Oregon drew national attention when it
briefly employed Liz Heaston as a kicker, but Willamette coach Mark Speckman
"said he would not dare call on Heaston now. He, like other coaches, has
two million reasons why, after the Duke case. 'A coach in my position
can't take the risk,' Speckman said. 'This is just going to freeze any
possibility out. It isn't worth it.'" Current interpretations of
Title IX, the feminist athletics statute, do not entitle women to join
men's football teams but do allow them to sue for damages if they are accepted
and then treated unequally. Former Duke coach Fred Goldsmith, who
befriended Mercer and then saw the relationship deteriorate and give rise
to the lawsuit, said, "I was a nice guy, and I got stabbed in the back."
(Guy Curtright, "Blow to the cause", Atlanta Journal-Constitution,
Oct. 29).
November 3-5 --
Alarming byline. "MIKE CRAIG is an attorney and
writer in Chicago. He has written for Online Investor and sued nearly
everyone for all sorts of misbehavior." -- byline on an article in Green
Magazine ("Listen to the Money Talk", Oct.
27).
November 2 -- Radiologists:
sue them enough and they'll go away. Although more
women are getting the word about the life-saving benefits of mammography
(X-ray screening for breast cancer), "doctors
who read the X-rays seem to be fleeing the field at an alarming rate.
Caught between rising litigation over allegedly missed tumors and low reimbursement
for their services, a growing number of radiologists say their field just
isn't worth the stress any more," writes Judy Foreman in the Boston Globe.
On the legal front, failure to diagnose breast cancer is "'the number-one
allegation against all doctors, in Massachusetts and nationally,' said
Martha Byington, a loss-prevention specialist at the Risk Management Foundation,
which insures Harvard doctors and hospitals." Radiologists have replaced
gynecologists as the medical professionals that lawyers most often go after
in that variety of case, especially since "mammograms can be extremely
difficult to read. Indeed, with hindsight -- that is, after a diagnosis
of breast cancer -- radiologists say they can often look back at old mammograms
and pick up tell-tale signs of cancer that, on first reading, did not raise
a red flag." Not surprisingly, high-profile jury verdicts and settlements
have proliferated.
As the specialty has developed a reputation for being legally difficult,
young doctors have shunned it. Meanwhile, "[t]he retirement rate
of radiologists doubled from 1995 to 1997, from 400 to 800 a year, while
the number of new radiologists specializing in mammograms dropped by 80
percent, according to a study by the American College of Radiology. . .
. For women, radiologist burnout translates into a months-long wait for
routine screening at many centers -- when the mammograms are available
at all." With the availability of free and even paid mammograms plunging,
more women are likely to go without exams, with deadly consequences.
(Judy Foreman, "Stressed Out: Burned by Lawsuits and Low Pay, Radiologists
Are Quitting, Making Women Wait Longer to Find Out If They Have Breast
Cancer", Boston Globe, Oct. 24).
November 2 -- Pot
tax bond. Kentucky investigators lacked enough evidence
of criminality to convict or even arrest 23-year-old Charles Thomas Jr.,
who lived in a trailer in Breathitt County near where 517 marijuana plants
were found growing on land he did not own. "Nevertheless, Thomas
owes the state a little more than $1 million under a 1994 law that taxes
[presumed] marijuana dealers $1,000 a plant and penalizes those who do
not pay the tax before they are caught." Moreover, the law "requires
suspected dealers to post a bond equal to the amount owed before they can
file a protest." Since Thomas doesn't have that kind of money, his
lawyer says his right to protest the assessment in court might as well
be a dead letter. ("$1 Million Pot Tax Bill Stirs Fight", APBNews/FindLaw,
Oct. 27).
November 2 -- No
K Street in Forbidden City. "During the 300 years
of the Qing
Dynasty, lobbying was an offense punishable by death. The emperor was
considered the Son of Heaven, and for a mere mortal to have the audacity
to suggest policy to him was unforgivable." (Sam Loewenberg, "Navigating
the Maze" (lobbying in present-day China), Legal Times, Sept. 19).
November 1 -- Don't
meet with her alone. "Michael Land wants other male
sole practitioners to learn from his sexual
harassment disaster. Never meet a prospective female client alone,
the Atlantic County, N.J., lawyer advises. Always have a secretary
or paralegal present. . . . In 1996, a potential client complained to police
that Land fondled her while they were alone. Police officers arrested him
and handcuffed him to a pipe while they booked him." A judge soon
threw out the woman's criminal complaint, and evidence came to light that
she was a frequent filer of suits deemed frivolous, but customers whispered
and Land's business began to dry up. Four years later, in a most
unusual turn of the tables, a jury not only denied her claim but ordered
her to pay him $225,000 on his counterclaim
of malicious prosecution. Vindication, yes, but at a price: "I
have not seen a female client unescorted after-hours since this incident
and probably never will again," he told a local paper. (Henry Gottlieb,
"New Jersey Jury Docks Client $225K for Saying Lawyer Groped Her", New
Jersey Law Journal, Sept. 6).
November 1 -- Contingency
fee reform. State ethics
codes do not give inexperienced legal consumers enough protection from
excessive lawyers' fees, argues the University of Illinois's Richard Painter,
especially in the realm of contingency fees, where it is "difficult to
discern much competition in a market that usually assigns the same risk
premium (33%) to a plaintiff’s case, no matter how large the case is and
no matter how likely the client is to win." In this paper for the
Civil Justice Memo series of the Manhattan Institute (with which this site's
editor is associated), Painter "reviews a number of the proposals that
have been made so far and discusses the comparative strengths of a new
proposal made by Jim Wootton, President of the U.S. Chamber of Commerce
Institute for Legal Reform: a 'New American Rule' that would require a
lawyer to set for each client at the beginning of a representation a limit
of any amount (phrased in dollars per hour of legal services) on how high
the contingent fee can go and then disclose to the client general information
about the fees that the lawyer has charged to other clients." (Richard
W. Painter, "The New American Rule: A First Amendment to the Client’s Bill
of Rights", Manhattan Institute Civil Justice Report #1, March
2000). Columnist David A. Giacalone at PrairieLaw also endorses
disclosure-based contingency-fee reforms ("Advocate
This!: Pricey Contingency Fees"), as does presidential candidate George
W. Bush (campaign website, "Civil
Justice Reform" -- see "Client's Bill of Rights" item).
November 1 -- "School
Suspends Girl for Casting Spell". In Broken Arrow,
Oklahoma, the Union Intermediate School District is said to have suspended
student Brandi Blackbear on suspicion of casting a spell. According
to the American Civil Liberties Union, assistant principal Charlie Bushyhead
called Blackbear to his office after a teacher fell unexplainedly ill,
questioned her about her passing interest in Wicca, and summarily suspended
her. "I, for one, would like to see the so-called evidence this school
has that a 15-year-old girl made a grown man sick by casting a magic spell,"
said the ACLU's Joann Bell. However, the school
attorney, Doug Mann, called the account into question, saying privacy laws
protecting juvenile records prevented him and the district from commenting
on the case: "It's totally unfair that we are gagged by federal and state
law and they can say anything they want," he said. "If the parents will
sign a release for what's in the girl's files, we will talk about the true
facts." (Ben Fenwick, Reuters/Excite, Oct. 30).
November 1 -- 750,000
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