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ARCHIVE -- NOVEMBER 2001
(III)
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November 30-December 2
-- Be somewhat less afraid. Notwithstanding
a scare campaign by antinuclear activists
including the egregious Robert F. Kennedy Jr., two physicists argue that
U.S. nuclear power plants are not likely to top the list of targets of
opportunity for terrorists seeking to inflict mass casualties (Gerald E.
Marsh and George S. Stanford, "Terrorism and Nuclear Power: What are the
Risks?", National Center for Policy Analysis Analysis #374, November;
"NY Nuclear Plant Shutdown Sought Pending Security Review", AP/Dow Jones/Business
Times, Nov.
9 (RFK Jr. compares Indian Point facility near NYC to nuclear bomb);
NCPA "Ten Second Response" series, "Media Overplays Risk of Terrorist Attacks
on Nuclear Power Plants", Nov.
16). California agricultural officials are seeking to calm public
fears that Central Valley crop dusters furnish a likely method of attack
on major urban targets; among the planes' limitations are their constricted
range and speed (Michael Mello, "Crop-dusters nothing to fear, officials
told", Modesto Bee, Nov.
29). And for a really contrarian view, U.S. Army veteran
Red Thomas has written a short essay on why, if you possess fairly minimal
civil defense smarts, you're likely to survive a chemical, biological or
even radiological attack. ("The Real Deal -- Words of Wisdom About
Gas, Germs, and Nukes" -- Snopes.com,
via Libertarian Samizdata
and Rallying Point
weblogs).
November 30-December 2
-- "U.S. Judge Dismisses All but One Columbine Lawsuit".
"A federal judge on Tuesday dismissed all but one lawsuit filed against
police and all claims lodged against a school
district by victims and relatives of people killed and injured in the
1999 Columbine High School shooting, lawyers said." (Yahoo/Reuters, Nov.
27)
November 30-December 2
-- Whiplash days: a memoir. Back in 1992,
actor/writer Thomas
M. Sipos (books: Vampire
Nation, Manhattan
Sharks, Halloween
Candy) answered a help wanted ad in Los Angeles's newspaper for
lawyers and took a job with a high-volume personal injury law firm.
He's now published on his website a memoir of that experience, entitled
"How To Make Money
In Soft Tissue Injury" -- names changed to protect the not necessarily
innocent.
November 30-December 2
-- Rejecting an Apple windfall. The news
that a disgruntled Apple employee had filed a race discrimination lawsuit
seeking $40 million from the computer maker prompted this reaction from
one African-American who recalls his own run-in with prejudice at a high-tech
employer
(AppleLinks, "Moore's Mailbag", letter from Marvin Price,
Nov.
9; Duncan Campbell, "Apple faces £27m 'race bias' lawsuit",
The
Guardian, Nov.
9).
November 29 --
"Patriot Act would make watchdogs of firms". "Ordinary
businesses, from bicycle shops to bookstores to bowling alleys, are being
pressed into service on the home front in the war on terrorism. Under
the USA Patriot Act, signed into law by President Bush late last month,
they soon will be required to monitor their customers and report 'suspicious
transactions' to the Treasury Department -- though most businesses may
not be aware of this." (Scott Bernard Nelson, Boston Globe,
Nov.
18).
Broadcaster Neal Boortz, who unlike many lawmakers actually sat down
and read the text of the USA Patriot Act, spells out the details of what
this means: "if you go to a business [not just a bank] and spend more than
$10,000 in cash that business has to report your name, address, social
security number and other pertinent information to the feds. It doesn't
matter whether you spend the money on one item, or a whole shopping cart
full ... the federal government must be notified." He adds: "This
has absolutely nothing to do with international terrorism" -- at
least not the variety practiced by the Sept. 11 killers, who used credit
cards and "did not deal in large amounts of cash. ... They never
spent $10,000 in cash with any business. In short, they never engaged
in any activity that would have to be reported under Section 365." (Neal
Boortz, "Neal's Nuze: The 'Patriot' Act???", Nov.
20). In fact, the Treasury Department has been hoping to extend
federal "money laundering" law in this manner for years; it just wasn't
pressing an anti-terrorism rationale for doing so (see "Lost in the Wash",
Reason,
March
1999). According to Gabriel Schoenfeld in Commentary,
one of the conclusions of former CIA counterterrorism deputy director Paul
R. Pillar in a major new study of terrorism policy for Brookings is that
financial controls are primarily of "symbolic" importance in combating
terrorism, which unlike drug trafficking typically involves the transfer
of only smallish sums. ("Could September 11 Have Been Averted?",
Commentary,
December).
November 29 --
Taco Bell a liquor purveyor? Well, no, you can't
buy booze at its outlet in Fort Smith, Ark. However, after several
of its employees there attended a party together on their own time, one
got into a fatal traffic accident, and before you can say "Yo quiero
deep pockets" the lawyers had figured out who they really wanted to
blame (Jeff Arnold, "Taco Bell Attorneys Seek Dismissal", Fort Smith Times-Record,
Nov.
9). Update Feb. 20:
case settled.
November 29 --
Lutefisk as toxic substance, and other reader letters.
A Wisconsin attorney writes to say that his state's employee right-to-know
law specifically excludes the Scandinavian discomfort food from being considered
a toxic substance; and we hear about
precedents for Sept. 11 litigation, the proper response to malicious email
pranks, and whether judges should expect any more privacy than the people
who appear before them.
November 29 --
"North America's most dangerous mammal". It's not
the grizzly bear or mountain lion, but adorable Bambi: deer-car collisions
kill 130 Americans a year and seriously injure many more. Meanwhile,
"nearly all the venison served in America’s finest restaurants is imported
from places like New Zealand (where deer are an exotic species)."
One idea for getting more on platters and fewer on fenders: reconsidering
old laws restricting traffic in hunted game.
(Ronald Bailey, Reason, Nov.
21).
November 28 --
Bioterror unpreparedness. First the government does
its best to render the making of vaccines uneconomic; then it declares
that the private sector has failed and vaccine production must be federalized
(Sam Kazman & Henry I. Miller, "Uncle Sam's Vaccines", National
Review Online, Nov.
26; Naomi Aoki, "Nation wants vaccines, but drug makers remain wary
of the risks", Boston Globe, Nov.
14). Meanwhile, the haste with which politicians like Sen. Charles
Schumer and anti-intellectual-property activists called (quite unnecessarily)
for abrogating Bayer's patent
in its antibiotic Cipro helped send the worst possible signal to drug companies'
research budgeters about the safety of their investments (James Surowiecki,
"No Profit, No Cure", The New Yorker, Nov.
5; John E. Calfee, "Bioterrorism and Pharmaceuticals: The Influence
of Secretary Thompson's Cipro Negotiations", draft, American Enterprise
Institute, Nov. 1).
November 28 --
Oklahoma forensics scandal, cont'd. The Washington Post
has a substantial front-page piece catching up with it. "Already,
a reexamination of [Joyce Gilchrist's] work has freed a convicted rapist
and a death row inmate, overturned a death sentence, and called into question
the evidence used to execute a man last year." (Lois Romano, "Police
Chemist's Missteps Cause Okla. Scandal", Nov.
26)(see May 9).
November 28 --
"Does reading grades aloud invade privacy?" The
Supreme Court has now heard arguments on that very strange case (see June
27) in which a teacher who
allowed students to rate each other's performance on an exam was accused
of violating federal "educational privacy" laws. (Warren Richey,
Christian
Science Monitor, Nov.
27; Frank J. Murray, "Students' grading papers passes Supreme Court's
test", Washington Times, Nov.
28; Marcia Coyle, "High Court Faces First School Records Case", National
Law Journal, Nov.
13). Update: high court rules practice not unlawful (Feb.
22, 2002).
November 28 --
Fiat against further fatherhood. The Wisconsin Supreme
Court "has upheld a ban preventing a man who owes thousands of dollars
in child support from having any more children. The court ruled that
David Oakley, a father of nine,
would be imprisoned if he had another child, unless he was able to prove
that he would pay support for both that child and his current offspring."
(BBC, "Baby ban on US child support shirker",
Nov.
24).
November 27 --
U.K. to compensate relatives who saw WTC attack on TV.
"British families who watched their relatives die during live television
coverage of the terrorist attacks on the World Trade Center may receive
compensation for the trauma they suffered. The Criminal Injuries
Compensation Authority (CICA), which normally compensates people who witness
in person a relative killed or injured in Britain, has taken the unprecedented
decision that people who watched coverage of the 11 September attacks should
be eligible for payments. ... Those eligible will receive payouts of between
£1,000 and £500,000, although the average level will be an
estimated £20,000." Under earlier rules, such payouts were
made only in cases where family members witnessed crimes that took place
in Great Britain. Critics complain that the U.K. is developing a
"compensation culture". (Matthew Beard, "British families of New
York victims may be compensated for trauma", The Independent, Nov.
19; Dominic Kennedy, "Surprise payout for relatives who saw attack
on TV", The Times, Nov.
19; Sarah Womack, "Cash plan for British TV witnesses", Daily Telegraph,
Nov.
19).
November 27 --
Target: ethnic-immigrant landlords. Latest shock-horror
on the housing front: many ethnic immigrant landlords prefer to rent units
to members of their own minority group. Who knew? Such patterns
have been detected among "Cambodians in Long Beach, Latinos in El Monte
and Taiwanese in Rosemead"; some landlords, it seems, will take tenants
from their own state in Mexico but not from other states in Mexico.
The L.A. Times lends a sympathetic ear to civil rights activists
who send out "testers" to catch such building owners and supers in the
act, though the article does not explore the hefty financial rewards sometimes
available when activists succeed in these missions (see "Tripp Wire", Reason,
April
1998). The article quotes no critics of the law, but does unveil
yet another demand coming down the pike: "In California, advocates say
the state should require antidiscrimination training for landlords." (Sue
Fox, "Mi Casa No Es Su Casa", L.A. Times,
Nov.
21).
November 27 --
Columnist-fest. Very topical stuff today:
* The proposed settlement of (some of) the private Microsoft
class actions (donations of outdated product to school districts, which
could entrench the company even more as standard-setter) may be absurd,
but blame that on the absurdity of the underlying lawsuits themselves,
argues Nick Schulz ("'You're an Evil Predator; Now Teach My Kids'",
TechCentralStation.com,
Nov.
23; Matthew Fordahl, "Few criticize Microsoft deal", AP/Seattle Post-Intelligencer,
Nov.
24).
* Canada's super-liberal
asylum policies are coming under a lot more scrutiny (Christie Blatchford,
"Canada and terrorism: programmed to receive",
National Post, Nov.
24; "Canada probes 14,000 refugees", Nov.
24)(see Sept. 14-16). See Cindy Rodriguez,
"Suspects take advantage of liberal asylum program", Boston Globe,
Nov.
23 (tossed grenades at airliner, now collects welfare in Ontario).
* "A desperately needed bill to protect the nation's insurance
industry and the greater economy after Sept. 11 remains in dire peril,
thanks to the financial pressure group that exerts the most influence over
the Democratic Party: the plaintiff trial lawyers of America." (Robert
Novak, "Politics as usual", syndicated/TownHall,
Nov.
22).
November 26 --
Utah: rescue searchers sued. "The family of Paul
Wayment and his son Gage have filed claims against searchers who did not
find 2-year-old Gage before he froze to death last year. The family
of Paul Wayment is seeking more than $3 million. Paul Wayment committed
suicide after being sentenced to jail for negligent
homicide in his son's death. The family is accusing searchers of being
negligent in their efforts to find Gage and are seeking more than $2 million
in damage for the deaths of father and son." (Pat Reavy, "Wayment kin sue
searchers",
Deseret News, Nov.
21; Jim Woolf, "Multimillion-Dollar Claim Filed By Wayments Against
Searchers", Salt Lake Tribune, Nov.
21; Lucianne.com
thread).
November 26 --
"Smokers Told To Fetter Their Fumes". In suburban
Washington, D.C., the Montgomery County, Md. council has approved a measure
setting stiff fines for residents who smoke at home if their neighbors
object. "Under the county's new indoor air quality standards, tobacco
smoke would be treated in the same manner as other potentially harmful
pollutants, such as asbestos, radon, molds or pesticides. If the
smoke wafts into a neighbor's home -- whether through a door, a vent or
an open window -- that neighbor could complain to the county's Department
of Environmental Protection. Smokers, and in some cases landlords
or condominium associations that fail to properly ventilate buildings,
would face fines of up to $750 per violation if they failed to take steps
to mitigate the problem." "This does not say that you cannot smoke
in your house," said council member Isiah Leggett (D-At Large). "What it
does say is that your smoke cannot cross property lines." Arthur
Spitzer, legal director of the American Civil Liberties Union's capital
area chapter, expressed unease over the proposal, but George Washington
U. law prof and anti-smoking activist
John Banzhaf, who has been known to give class credit to students for suing
people, calls it a "major step forward". (Jo Becker, Washington Post,
Nov.
21; Jacob Sullum, "The Home Front", Reason Online, Nov.
27) (see also Oct. 5-7). Update:
plan is dropped after storm of criticism (Jo Becker, "Global Ridicule Extinguishes
Montgomery's Anti-Smoking Bill", Washington Post, Nov.
28).
November 26 --
After racist gunman's assault, a negligent-security suit.
"A San Fernando judge is set to decide if the North Valley Jewish Community
Center can be sued for failing to protect 5-year-old Benjamin Kadish from
a racist gunman who opened fire inside the Granada Hills facility in August
1999, injuring the boy and four others. Benjamin's parents, Eleanor
and Charles Kadish, sued the center in April, claiming the center's officials
should have known the facility 'was a target for anti-Semitic attacks'
and taken appropriate security precautions, such as locking entrances and
hiring guards." Defense lawyers for the center call the Kadishes'
lawsuit "inappropriate, divisive and utterly unsupported by the law".
"There cannot be a duty on the [center] to prevent the likes of Buford
Furrow from doing this terrible thing," attorney Scott Edelman said.
"They are suing a victim." (Jean Guccione, "Judge to Rule on Suit Over
Shooting", Los Angeles Times, Nov.
19).
November 23-25 --
Disposable turkey pan litigation. The National
Law Journal's Gail Diane Cox decided to follow up on some of the suits
that get filed after each holiday season against makers
of disposable turkey roasting pans, alleging that the pans buckled or collapsed
causing personal injuries to result from oven-hot birds or drippings.
Attorney Matthew Willens of the Rapoport Law Offices in Chicago said his
office's case on behalf of a 69-year-old Illinois woman hurt in a pan incident
on Thanksgiving Day 1995 settled for "a decent amount, if not the millions
that some of these cases seek," but that his office did not pursue opportunities
for cases brought in by resultant publicity: "We didn't want to become
known as the turkey pan guys." ("Voir Dire: Thanksgiving law a turkey",
National
Law Journal, Nov. 12, not online). (DURABLE
LINK)
November 23-25 --
"School sued over poor results". One we missed last
month from the U.K. educational scene:
"A student is suing her former school, claiming poor teaching was to blame
for her failure to achieve a top grade at A-level. Kate Norfolk,
who attended £4,000 per term independent school Hurstpierpoint College,
West Sussex, says she was not properly prepared for her Latin A-level.
... Her family has issued a writ to the High Court, seeking £150,000
to cover the loss of future earnings, school fees and compensation for
the distress caused." (BBC, Oct.
1).
November 23-25 --
Australian roundup. In Australia, Supreme Court
Justice Peter McClellan has ruled against Kane Rundle's claim for more
than $1 million in compensation for brain damage suffered when, as he leaned
out of a train carriage to spray-paint graffiti on a wall, his head
collided with a stanchion. Rundle had argued that the State Rail
Authority was negligent "because it had failed to ensure a carriage window
could not be opened far enough to put his body through." (Will Temple,
Queensland
Courier-Mail, Oct.
6). In the state of Victoria, a woman has won a $20,000
payout from the police for being handcuffed by police in a 1993 incident
after she failed a breath test; police sources said the woman had "started
banging her head against a wall for several minutes and was handcuffed
to a chair [for five minutes] to stop her injuring herself" while the woman
contended in a 1998 writ that the cuffed state had lasted a half hour and
that she had been severely bruised. A police spokesman said the payout
was made after considering the expected cost of fighting the claim and
that the department did not concede any liability. "In the past 2
1/2 years, about $5 million has been paid out by police over alleged bashings,
illegal arrests and jailings. Police have blamed 'no win, no fee'
lawyers for fueling a flood of claims." (Nick Papps, "$20,000 payout for
handcuffing", Sunday Herald-Sun (Melbourne), Sept.
9). However, a Perth bodysurfer dumped by a wave lost his case
arguing that the local council breached its duty of care by not posting
signs warning of the dangers of bodysurfing, leading one frustrated Aussie
private citizen to post a formal declaration: "I hereby publicly totally
renounce any duty of care to anybody. ... If a person wants to commit suicide,
it is not my duty to talk them out of it." ("Ziggy", "Blame
Others for Your Mistakes"). (DURABLE
LINK)
November 21-22 --
Liability limits speed WTC recovery. How to help
New York City and the commercial aviation business recover from the devastating
blows of September? When the chips are down, there's no substitute
for reining in our system of unlimited liability and unpredictable punitive
damages, as is being recognized in the WTC case by some unlikely candidates
for the role of tort reformer, like New York Sens. Hillary Rodham Clinton
and Chuck Schumer, both Democrats who have opposed liability limits in
the past. Clinton and Schumer have now successfully pressed for legislation
to protect the operator/leaseholder of the destroyed WTC, Larry A. Silverstein;
the Port Authority; the city of New York; airport operators such as Boston's
Logan; and certain aircraft makers from the prospect of unlimited, ruinous
liability in a decade or more of future litigation. Most of these
entities will see their exposure limited to the extent of their insurance
or, in the case of the self-insured city of New York, to $350 million,
a figure that approximates the city's annual payout for suits of all other
kinds. Sen. Patty Murray (D-Wash.) went to bat for provisions
protecting Boeing, which has large operations in Washington state; the
airlines themselves were protected in an earlier round.
House Judiciary Chairman James Sensenbrenner (R-Wisc.) warns that various
less obvious targets that wield less clout on the Hill, including World
Trade Center architects, steel manufacturers, jet-fuel providers, and the
state of New York, still face open-ended liability. You'd think this
would be what educators call a teachable moment for longtime tort-reform
opponents Hillary and Chuck, since they've now acknowledged that when it's
really necessary to pick up and keep going after disaster, some limits
are needed on the power of their friends in the trial bar to keep the blame
process in play forever. Unfortunately, both New York senators are
signaling that the circumstances in this case were, um, unique, and that
no other defendants worried about liability exposure should expect any
sympathy from them. (DURABLE LINK)
SOURCES: "Hillary for Tort Reform" (editorial), Wall
Street Journal, Nov.
20 (online subscribers only); statement of Rep. James Sensenbrenner,
chairman, House Judiciary Committee, Nov.
16; Christopher Marquis, "Measure Sets Liability Caps for New York
and Landlord", New York Times, Nov.
17; "War Profiteers" (editorial), OpinionJournal.com,
Oct.
14; "War Profiteers II" (editorial), Wall Street Journal, Nov.
8; and WSJ coverage: Jim VandeHei, "Airline-Security Bill Will
Extend Liability Shield to Boeing, Others," Nov.
16; Jim VandeHei and Milo Geyelin, "Bush Seeks to Limit the Liability
Of Firms Sued as Result of Attacks", Oct.
25; Jim VandeHei and Jess Bravin, "Lawmakers Work to Provide Liability
Shields For Boeing, World Trade Center Leaseholder", Oct.
24.
November 21-22 --
"They're back!" No, this isn't the first parody of what
will happen if apprehended Al-Qaeda terrorists hire big-name American trial
lawyers to get them off, but it's one of the funnier ones (Victor Davis
Hanson, National Review Online, Nov.
20). See also Jonathan Kay, "Bullets over barristers", National
Post, Oct.
13; Michelle Malkin, "No more jury trials for terrorists", TownHall.com,
Oct.
24; James S. Robbins, "Bring on the Dream Team!", National Review
Online, Oct.
9. Incidentally: here's an inspiring photo
weblog of Afghan liberation (via Matt
Welch).
November 21-22 --
Fight over dog's disposition said to cost taxpayers $200K.
An eight-year legal battle over a Lhasa Apso by the name of Word, alleged
by the city of Seattle to be vicious, has at last ended with the dog's
reprieve. "Attorneys for Word's owner say the fight has cost taxpayers
well over $200,000." (Sara Jean Green, "Canine con gets reprieve
after eight years", Seattle Times, Nov.
14).
November 21-22 --
Welcome SmarterTimes readers. Ira Stoll's
invaluable New York Times-watching service gave us a nice mention
Tuesday in a discussion of an absurdly one-sided piece
the Times ran on the Americans with Disabilities Act. (Nov.
20, see bottom). Also linking us recently: India's Bombay
Bar Association ("Law-U.S."); Duke
Update Morning Run (college sports); John Brignell's NumberWatch
from the U.K. (a site "devoted to the monitoring of the misleading numbers
that rain down on us via the media"); Citizen's
Coalition for Children's Justice (zero tolerance abuses); CPA
Wizard; National Anxiety Center;
Jim's
Cop Stuff;
Egotist
("The mildly libertarian stance bothers me but that aside this site seems
to actually have something to say, which is sadly not the rule on the internet");
Randleman
Land; weblogs
More Than
Zero (Andrew Hofer), LawSchoolCrazy, Nov.
17 (Jorge Schmidt, Univ. of Miami -- "Every once in a while I need
a reality check. Nothing is better at reminding me what most people
think of lawyers, and the law, than the outstanding Overlawyered.com
site", What the...?
(Andrew Shulman -- "find out how funny and sad our legal system is").
Best wishes to all of you, and happy Thanksgiving.
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