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ARCHIVE -- FEB. 2001
(III)
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February 28-March 1 --
Put out that match. Environmental
activists are stepping up efforts to curb agricultural burning, a practice
common among farming peoples since prehistoric times. One pressure
group in Washington state filed a complaint a year and a half ago charging
that the state was violating the Americans with Disabilities Act by issuing
permits to wheat farmers to burn the stubble of their fields, the argument
being that the smoke from the practice could aggravate existing respiratory
distress among the disabled. Last March the state entered into a
pact with the activists in which it agreed, among other things, to "conduct
airplane flights ... to assess compliance with legal permitting requirements
for wheat-stubble burning" and to enter mediation concerning other demands.
(Department of Ecology news release, March
3, 2000). And via Irk Magazine (Nov.
1) we learn of the existence of Burning
Issues, founded by a Sierra Club activist, whose mission is to crusade
against the burning of wood -- that is to say, wood as in fireplaces and
wood stoves. Its website includes headings like: "The holidays
-- the deadliest time of the year" with advice on ways to roast chestnuts
other than on an open you-know-what, as well as its motto: "Learn Not To
Burn". The ever-meddlesome
American
Lung Association has come out for tighter restrictions on household
woodburning, declaring that "individuals should avoid burning wood in houses
where less polluting heating alternatives are available" -- which is to
say, rejecting entirely as an adequate reason for snuggling in front of
a fireplace simply that you and your snugglee might enjoy doing so.
(Government Relations position, April
24, 1999).
February 28-March 1 --
"It's time to disarm the hired guns". "'He acted
as a lawyer,' said longtime Clinton adviser Harold Ickes of his law partner
William Cunningham's pardon work
while he was treasurer of Hillary Clinton’s Senate campaign. ... The legal
profession can’t take much more of this free publicity." (Arianna
Huffington, syndicated column, Feb.
26).
February 28-March 1 --
By reader acclaim: suing over circumcision. William
Stowell is suing the hospital where
he was born, saying that his adult sex life is not as much fun for him
and his partners as it might have been because it subjected him as an infant
to the surgical procedure of circumcision.
"Stowell is just a test case for a new niche of personal-injury caselaw
being carved out by Atlanta lawyer David Llewelyn, who has become to the
anti-circumcision camp what Johnnie Cochran is for celebrities accused
of horrendous, made-for-TV crimes. More than a decade since the first
'wrongful circumcision' case, Llewelyn has been increasingly successful
at winning settlements ($65,000 in a 1995 case, for example) and blocking
unwanted circumcisions." (Gersh Kuntzman, "Sex life not good? Sue!",
Newsweek/MSNBC, Feb. 26)
February 27 --
Appeals panel: schools' harassment rule unconstitutional.
A panel of the Third Circuit U.S. Court of Appeals has unanimously ruled
that the State College, Pa. school
district impermissibly infringed on freedom of expression when it adopted
a policy banning a broad range of name-calling and other deprecating speech
directed at students' sex, race, color, national origin, age, disability,
or "other personal characteristics" such as "clothing," "appearance," "hobbies
and values" and "social skills". "There is no categorical 'harassment
exception' to the First Amendment's free speech clause," wrote Judge Samuel
Alito. "Moreover, the SCASD Policy prohibits a substantial amount
of speech that would not constitute actionable harassment
under either federal or state law." (April White, "3rd Circuit Finds School
Anti-Harassment Policy Violates Free Speech Rights", The Legal Intelligencer
(Philadelphia), Feb.
16).
February 27 --
Forbidden paint zone. Touring a school
in her New York City council district, Eva Moskowitz noticed that although
most of each classroom had been newly painted, the upper part of the walls
and the ceiling conspicuously hadn't been. It turned out to reflect
a systemwide work rule: custodians
can only paint the walls up to ten feet, beyond which you have to call
in the painters. It's "a bizarre and wasteful approach to maintenance
that we would never accept in any other context. Would you want your
apartment to be painted in two steps, perhaps years apart? Your inconvenience
would be doubled," to say nothing of how the results would look.
"The 10-foot rule is a symptom of a much deeper problem. We are at the
mercy of an educational monopoly, a system that is the sole repository
of public funds for education and therefore competes with no one for the
privilege of educating our children." (Eva Moskowitz, "Paint by Numbers",
The New Democrat Online, Dec.
20) (via WSJ Opinion Journal).
February 26 --
Insurance class settlement scuttled. Following scrutiny
of the case by a reporter for the Albuquerque, N.M. Journal, Santa
Fe attorney Gary Duncan has dropped a proposed settlement of a class
action against the MassMutual life insurance company which would have
paid him millions of dollars while all but two policyholders received no
cash at all. "The lawsuit accuses MassMutual of failing to disclose
installment charges that it levies on policyholders who pay annual premiums
over time rather than in one lump sum. The proposed settlement called
for Duncan to receive $5 million in cash, a $3 million life-insurance policy
and annual payments of $250,000 for life. The two MassMutual policyholders
named as plaintiffs in the lawsuit would have shared $400,000, but 6 million
other current and past policyholders represented by Duncan would have received
nothing."
"The insurance company has acknowledged not expressly stating installment
charges in policies, but it has said policyholders could easily calculate
such charges from payment schedules. It also has said that its policies
have been approved by state insurance regulators," according to reporter
Thomas Cole in the Albuquerque paper. More than a dozen similar class
actions have been filed against insurers in New Mexico courts, and in December
state judge Robert Scott approved a settlement in a case against Primerica
Life Insurance Co. in which lawyers shared $7.5 million in fees and costs,
the company agreed to improve disclosures, two named plaintiffs got $30,000
each, and the other 3 million members of the plaintiff class got $0.00.
Although Duncan wasn't one of the lawyers in the Primerica case, one lawyer
who was, Floyd Wilson of Albuquerque, also turned up as one of the two
named plaintiffs in the MassMutual case "and was to receive $250,000 under
the proposed settlement." (Thomas J. Cole, "Lawyers Reap Millions
in Suits Against Insurers", Albuquerque
Journal, Feb.
18; "Attorney Backs Out of Insurance Settlement ", Feb.
23). Noted class-action objector Lawrence Schonbrun calls the
MassMutual settlement "the poster child for class action abuse" (press
release, not online, law offices of Lawrence Schonbrun, (510) 547-8070).
(DURABLE
LINK)
MORE ON CLASS ACTIONS: Tatiana Boncompagni, "Businesses,
Lawyers Gird for Tort Battle", Legal Times, Feb.
14 (class action reform shaping up as one of earliest legal-system
fights in Congress this year); Amanda Levin, Insurers Cry Out for Class-Action
Reform, National Underwriter, April
24, 2000, reprinted at United Farmers Agents Association site (big
class actions have insurers alarmed; quotes our editor); Mary Alice Robbins,
"Tort Reformers Pushing for Limits on Class Actions — Again", Texas
Lawyer, Feb. 12, reprinted
at CALA Houston site; and perhaps the least shocking headline of the
year 2000: Maggie Mulvihill, "Lawyers fight cap on class action fees",
Boston Herald, Oct.
10.
February 23-25 --
Hugh Rodham's "success fee". What's so awful about
President Clinton's brother-in-law charging presidential pardon-seekers
on a contingency basis, accepting his whopping fee from them only if Brother
Bill can be prevailed on to grant the clemency? Doesn't that just
guarantee customer satisfaction on the part of the client? Ira Stoll
asked that question in yesterday's SmarterTimes
(Feb.
22) so here's one answer: lawyers are supposed to act as officers of
the court, which means they're obliged to refrain from doing many things
that might make their clients happy at the expense of justice. If
you incentivize lawyers too sharply by promising an instant fortune if
they find a way to win, more of them will fall into ethical lapses and
bad judgment (disgracing their senator sis, for example) in the quest to
find get-rich-quick cases of this sort and make them come out the right
way. That's why most legal systems ban contingency fees for lawyers
as unethical, and why ours
used to do so too (more by our editor on this: part one,
two).
See also Chris Suellentrop, "Explainer: Should Hugh Rodham Be Disbarred?",
Slate,
Feb.
23) (Florida ethics rules forbid contingency payment in criminal cases,
but it's not clear whether pardon lobbying counts as such).
February 23-25 --
"P.C., M.D." Sally Satel is making a stir with her
critique of the politicizers of medicine,
particularly the "indoctrinologists" who seem to have taken over much of
the field of public health. She summarizes her thesis in this talk
before the American Enterprise Institute. ("Postmodern Medicine",
Bradley Lecture Series, Jan.
8) (more
about book)(New Republic review by Sherwin P. Nuland, Feb.
19).
February 23-25 --
"Cop's claim: Gun belt too heavy". "A five-year
Federal Way Police Department veteran
has filed a $57,000 damage claim against the city, saying he was forced
to wear a heavy leather gun belt and holster that damaged his hip."
Roger Baldwin, 29, says he has developed bursitis. (Seattle Post-Intelligencer,
Feb.
22).
February 23-25 --
Top jury awards soar in 2000. "Each year, there
are record jury verdicts handed out somewhere. But 2000 saw the largest
verdict ever awarded -- $145 billion in a products liability class action.
Indeed, massive awards in nearly every category jumped significantly last
year." Especially hot: awards for patent infringement and other IP
claims. ("The Verdict on Jury Awards in 2000", National Law
Journal,
Feb.
15; Margaret Cronin Fisk, "Patent Victories Reflect 2000 Trend", Feb.
19; "Jury verdicts rise despite economy: paper", Reuters/FindLaw, Feb.
9).
February 21-22 --
3Com prevails in shareholder suit. A California
judge has dismissed on summary judgment a shareholder
class action against 3Com, which had alleged that the high-tech
firm misled investors in 1996 and 1997. "Despite the 1995 Private
Securities Litigation Reform Act, 3Com -- like other companies dealing
with dips in the stock market -- has faced a flood of securities fraud
class actions. ... 'They were tired of getting sued,' [said Keith Eggleston,
a Wilson Sonsini lawyer who defended 3Com]. 'A lot of companies settle
these because they need to get rid of distraction and it's the path of
least resistance.' ... Since the 1995 legislation, securities class action
filings in federal courts have increased from 188 in 1995 to 238 in 1999,
according to National Economic Research Associates, an economic consulting
and analysis firm based in New York. The cost of settlements has also risen
substantially in the past five years, from $8.5 million to $12 million."
(Shannon Lafferty, "Judge Dismisses Securities Fraud Suit Against 3Com",
The
Recorder (S.F.), Jan.
31).
While the case is a setback for plaintiffs' attorneys Milberg
Weiss Bershad Hynes & Lerach, which has sued 3Com three times in
recent years, the law firm fared better in a White Plains, N.Y. courtroom
where a federal judge ruled that Milberg had not maneuvered improperly
to secure lead-counsel status in a class action against Oxford Health Plans
Inc. (see Jan. 18). Judge Charles Brieant
rejected contentions by Oxford's lawyers, Sullivan & Cromwell, that
Milberg's clients had been trying to sue despite favorable results on their
Oxford investments. (Jonathan D. Glater, "Judge's Ruling Is Victory
for Law Firm's Reputation", New York Times, Feb.
16).
February 21-22 --
ABA criticizes zero tolerance. Who says we're doomed
always to disagree with the leadership of the American Bar Association?
They've now voted to oppose zero tolerance school
discipline policies ("ABA Opposes 'Zero Tolerance' in Schools", AP/ABCNews.com,
Feb.
20). And the L.A. Times reports that school districts
around the country have been quietly dropping or softening the policies,
appalled by their tendency toward results both harsh (straight-A students
kicked out for having a nip in the limo on prom night) and irrational (Seattle
officials first expelled, later contenting themselves with suspending,
a student who had a box cutter
in his backpack for use in his after-hours job in a supermarket; numerous
Boy Scouts got in trouble for knives; not to mention "the 10-year-old in
Colorado who brought her mother's bread knife to school by mistake and
was expelled even though she had turned it over to school authorities."
"We were just throwing kids out,'' said an assistant superintendent of
the Brea Olinda schools in Orange County, Calif. "It was a tough-love
policy without the love.'' (Jessica Garrison, "Schools Learn Zero Tolerance
Isn't 100 Percent Foolproof ", L.A. Times/St. Louis Post-Dispatch,
Feb.
19).
February 21-22 --
Welcome visitors. We were named yesterday (Tuesday)
as the latest "Cool Site" by National
Review Online; cited by Scott Norvell in his FoxNews.com column on
political correctness and free speech, "Tongue-Tied";
and made it onto the Wall Street Journal's "Opinion Journal Best
of the Web" (Feb.
20). So it's no surprise that readership of this site is on track
to set another record this month. Thanks for your support!
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