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October 10-11 --
"U.S. to Fully Compensate Victims' Kin". In a step
virtually unprecedented in a government-run program, the new Sept. 11 fund
will assign a dollar value to, and compensate at taxpayer expense, the
emotional pain and suffering experienced by survivors (David G. Savage,
Los Angeles Times, Oct.
5). Wealthier victims' families could be the ones who mostly
opt out of the federal plan and into private litigation, because of the
proviso by which payments from the federal fund will be reduced to reflect
amounts families can recover from insurance and other contractual sources,
which will often amount to a large offset in the case of high-paid execs
(Harriet Ryan, "Victims' families face choices in collecting compensation",
CourtTV.com,
Sept.
28). With damages for airlines limited to their insurance, "the
hunt is on for additional defendants with deep pockets. Lawyers say
these could include wealthy supporters of terrorism; private baggage-screening
firms hired by airlines; contractors that may have improperly screened
service personnel allowed on planes; and the operators of the airports
where the hijackers boarded." (Martin Kasindorf, "Families seeking
compensation face a choice", USA Today, Oct.
2) And see if you can spot the implicit assumption in this headline:
Seth Stern, "Who pays the damages for Sept. 11?", Christian Science
Monitor, Sept.
27.
October 10-11 --
"Never far from school halls: the lawsuit". "Schools
have always been fertile ground for lawsuits over religious observance
and free speech. But educators say the volume of suits is on the rise,
forcing them to siphon time and money away from learning." (Seth Stern,
Christian
Science Monitor, Oct.
9).
October 10-11 --
"Man Thought He Was Dead, Sues Airline". Scott Bender
of Philadelphia was snoozing when the U.S. Airways flight
from North Carolina landed at the Birmingham, Alabama airport and the crew
left him there in the little plane until he woke up. It was really
dark, says his lawyer, and Bender "didn't know if he was alive or dead"
-- it turned out the former. Now he wants money for the fright and
other harms. (Chanda Temple, Birmingham News, Oct.
4).
October 9 -- Employee's
right to jubilate over Sept. 11 attack. Kenneth Bredemeier,
"On the Job" columnist for the Washington Post, yesterday ran the
following remarkable communication from one of his readers, which we take
the liberty of quoting at length since it deserves to be read word for
word:
"On the day of the World Trade Center and Pentagon
disasters, a Muslim woman at work jumped for joy in the cafeteria saying,
'Yes, yes, yes,' upon hearing the news.
"Apparently nothing was said to her at the time of her
'celebration.' Her supervisor consulted the HR manager for advice.
He suggested a group meeting to explain that this is a very sensitive time
for everyone and that it is probably best to not discuss the disasters
at all. He also said to not single out anyone or specifically mention
her actions.
"When I heard about it, I wanted to know why she is still
at work. I was told to not say anything. Is that right? I have
no intention of starting a riot, but I feel this incident should not be
ignored. What, if anything, can I do?"
Don't say anything to her; hold a group meeting; tell
other workers to stop talking about the attacks. Could this be
just one supremely craven HR manager, at one sensitivity-addled company?
No, it gets worse. Bredemeier then consults an expert named Laurie
Anderson, a "Chicago clinical psychologist and organizational consultant".
Her advice? As "uncalled for [!] as the impromptu celebration might
have been, corporations 'can't fire someone for violating something that
was never spelled out.' She said the employee who was upset by her
co-worker's joy at the attacks ought to go to management and say that she
wants 'to be a part of the ongoing conversation about our policies.'"
And Anderson adds: "It's horrifying, but there's no law against being insensitive."
But of course Anderson gets it exactly, 180-degrees wrong on that last
point. There is a federal law against being insensitive in
ways that make co-workers feel disliked or disparaged because of their
ethnic or national affiliation -- it's called the "hostile environment"
branch of harassment law, and lawyers
have deployed it repeatedly to win big bucks for workers who have testified
that they were upset by hearing slighting comments aimed at their ethnic
or national group. If an employer in this country learns that one
of its workers has burst into applause in the cafeteria at learning of,
say, a massacre or assassination aimed at a protected ethnic minority,
then its failure to discipline that worker would create something approximating
a dream case if and when a member of that minority chooses to sue the company
charging hostile environment. (Nor will it get the company off the
hook, in explaining its failure to discipline, to plead that it had not
previously warned its workers specifically not to jubilate in such circumstances.)
The difference between the two fact patterns? So far as we can
tell, it's mostly that "American" doesn't operationally count as a protected
ethnicity under federal law. And so we arrive at a supposed right
to jubilate, among Americans, over the deaths of Americans without having
to worry about the risk of dismissal or even harsh words or shunning.
Could anything be crazier? (Kenneth Bredemeier, "At Some Companies,
An All-Too-Rapid Response to Attacks", Washington Post, Oct.
8).
Addendum: no more than urban legend?
Reader John Kingston of Carle Place, N.Y., in a letter to Washington Post
columnist Bredemeier which he cc's to us, writes:
Your column on workplace reaction to September
11 may have come closest to actually identifying the jubilant Muslims,
a story sweeping the country that has all the earmarks of an urban myth.
It appears the person who wrote you the note at least claims to have actually
seen the jubilant worker. Every other reference to the jubilant workers
has several key omissions: the name of the workplace where it happened
(as in your case); the name of the jubilant person (OK, understandable);
or an actual first-person account (which you sort of have, but do not actually
identify the first-person). Yet these stories of the celebrating Muslims
have come from all over the country, and none of them have been proven.
Please do your readers a service in a future column. Put
the name of this correspondent in print. And if the correspondent does
not want to be put in print, please call him up and grill him on the facts
of the case. Because quite frankly, this story sounds like a pile of baloney,
and I was shocked to see it repeated and given credence, without what I
would consider significant attribution, in a fine paper like yours.
Adds reader Kingston: "And to make it worse, Overlawyered.com repeats
it as well. OK, its point was regarding what a workplace could do if it
actually had a publicly jubilant Muslim. But my guess is that nobody actually
did. This story, Mr. Olson, sounds like a close cousin of junk science."
(DURABLE
LINK) [And see Letters, Oct.
22]
October 9 -- "Plaintiff's
lawyers going on defense". In at least two major
areas of mass tort litigation now under way, plaintiff's lawyers well known
from asbestos and tobacco work have crossed the aisle to work for defendant
businesses: Sulzer Orthopedics Inc. has hired Mississippi's Richard Scruggs
to represent it in hip joint cases, and Bridgestone Firestone has hired
Texas's Wayne Reaud to settle tire cases. "Already this year, Reaud
has negotiated 117 settlements for Firestone in Texas, including 22 cases
involving deaths." (Mark Curriden, Dallas Morning News/Austin American-Statesman,
Sept.
4, Googlecached) On Reaud and Firestone, see also Michael Freedman, "The
Informer: It Takes One to Know One", Forbes, Sept.
17. (DURABLE LINK)
October 8 -- Why
we fight, #2. Reason #1 is of course what happened on
Sept. 11; but how strangely constricted would be our war aims if they did
not also by this point include the final overthrow of the Taliban. (Sam
Handlin, "Justice takes on a different meaning in Afghanistan", CourtTV.com,
Sept.
28; Jan Goodwin, "The first victims: the Taliban have been terrorizing
women for years", New York Daily News, Oct. 4; Vincent Laforet,
"At Kabul's door, an army of addicts", New York
Times, Oct.
7 (reg) (arms chopped off by the Taliban for smoking opium in an Afghan
school, Mooruddin Aki now begs on a street in Quetta, Pakistan, where passersby
stuff bills into his mouth)).
Among pieces we've liked recently: Peter Ferrara, "What is an American?"
(National Review Online, Sept.
25). And what's the opposite of Osama bin Laden? Here's
one answer: "The men and women of the space program, and their legions
of scientific antecedents, spent countless hours acquiring the knowledge
and developing the moral values that led to the moon landing. Not
many years later, Osama bin Laden and his fellow terrorists also spent
many hours of planning, sitting not in laboratories and libraries, but
in tents and caves, with one goal: not to create, but to annihilate human
creations. The scientists measured their success by how much they
could produce. The terrorists measure their success by how much they
can destroy." (Michael Berliner, "Terrorists vs. America", Ayn Rand
Institute, Oct.
5) (via InstaPundit).
October 8 -- "Hama
to sue bridge owners over her daughter's fall".
When Kaya, a 17-month-old with Down's syndrome, fell from her mother's
arms and off the Capilano Suspension Bridge in Vancouver,
she miraculously escaped with only scratches, tree boughs breaking her
fall. But her mother, Nadia Hama, is suing the bridge operator anyway;
her lawyer says she was traumatized by the aftermath of the incident which
included a police investigation and press coverage that "was largely very
negative". (Andy Ivens, "Hama to sue bridge owners over her daughter's
fall", The Province (Vancouver), Sept. 25).
October 5-7 --
Feds' Lanning v. SEPTA turnabout.
The U.S. Justice Department has unexpectedly dropped its support of a long-running
lawsuit which sought, in the name of female applicants, to weaken the physical
fitness standards used in hiring by
the Philadelphia transit police. The Department did not cite the
Sept. 11 attacks in explaining its abrupt shift, but its spokesman Don
Nelson explained the new stand as follows: "Our position is that we believe
it is critical to public safety for police and firefighters to have the
ability to run and climb up and down stairs under the most extraordinary
circumstances". In earlier rounds of litigation the feds had sided
with plaintiffs lawyers from the Public Interest Law Center of Philadelphia,
whose chief counsel calls the new turnabout "a slap in the face of women"
and a breach of what he said was a promise made by Attorney General John
Ashcroft not to retreat on any civil rights issue. (Joseph A. Slobodzian,
"U.S. backs away from suit against SEPTA test", Philadelphia Inquirer,
Oct.
2) (see Sept. 15, 1999). Maybe
someone at the Department has been listening to our commentaries of Sept.
13 and other dates. Update Oct.
25-27, 2002: Third Circuit panel rules for SEPTA.
October 5-7 --
Civil liberties roundup. What Alexander Hamilton
(who used to hang out a lot in New York's financial district) would want
us to remember (Andrew Ferguson, "Strange Bedfellows in This War", Bloomberg.com,
Oct.
2). The left-right civil liberties coalition that has urged scrutiny
of the counter-terrorism bill doesn't agree within itself on much more
than platitudes, argues James DeLong of the Competitive Enterprise Institute
("Liberty and Order", National Review Online, Oct.
2). And London's invaluable Spectator points out some
of the very real costs of national identity cards, whose use would probably
not have done much to hinder last month's suicide attacks, the ringleaders
of which were mostly traveling under their own names with valid ID ("Fighting
for Freedom" (editorial), Sept. 29).
October 5-7 --
"Attorney Ordered to Pay Fees for 'Rambo' Tactics".
"Clifford Van Syoc, a solo practitioner in Cherry Hill, N.J., is known
for his zealotry in pursuing plaintiffs' employment-discrimination
claims. But now a federal judge, comparing Van Syoc to Rambo, says
he's gone over the line. The judge excoriated him for unreasonably
pushing a meritless reverse-bias claim and assessed Van Syoc personally
for $59,216 in fees and expenses." (Tim O'Brien, New Jersey Law Journal,
Sept.
6).
October 5-7 --
Utah lawmakers: don't smoke in your car. Legislators
in that state have "approved in concept" the idea of legally banning parents
from smoking in cars in the presence
of their kids, but some among them are reluctant to put their names on
such a measure as sponsors given its appearance of extreme meddlesomeness
in what was once considered private life (James Thalman, "Lawmakers may
up ante for smoking around kids", Deseret News, Sept. 15).
October 3-4 --
Anti-bias law not a suicide pact. "Earlier this summer,
U.S. officials told airlines that conducting extra checks on passengers
of Arab origin was a violation of the passengers' civil rights. Also,
Transportation Secretary Norman Mineta ordered a federal investigation
into complaints by Arab-Americans that they were being unfairly targeted
by security screenings." (Catherine Donaldson Evans, "Terror Probe
Changes Face of Racial Profiling Debate", FoxNews.com, Oct.
1; Stuart Taylor Jr., "The Case for Using Racial Profiling at Airports",
National
Journal/The Atlantic, Sept.
25). But of Arab Americans in metropolitan Detroit, "61 percent
said such extra questioning or inspections are justified, according to
a poll conducted last week by the Detroit Free Press and EPIC/MRA.
Twenty-eight percent disagreed; 11 percent were undecided." (Dennis Niemiec
and Shawn Windsor, "Arab Americans expect scrutiny, feel sting of bias",
Detroit Free Press, Oct.
1). "Federal regulations give commercial captains the right to
remove anyone from a flight without reason." (Jonathan Osborne, "Passenger
ejections seen as profiling", Austin American-Statesman, Sept. 29).
In reaction to the horrors of World War II, the federal constitution
of Germany curbs what might be termed religious profiling in law enforcement,
and authorities in Hamburg, where preparations for last month's attack
were apparently made, acknowledge that their monitoring of extremist Islamic
activity has been sharply limited as a result: "police are severely restricted
in probing groups defined by faith". (Carol J. Williams, "German
Hunt for Terrorists Haunted by Past", Los Angeles Times, Oct.
1). Detailed passenger profiling is essential to the much-admired
security record of the Israeli airline El Al (Vivienne Walt, "Unfriendly
skies are no match for El Al", USA Today, Oct. 2). Updates:
see Nov. 2-4,
Nov.
9-11.
October 3-4 --
"Follow the money ... but don't hold your breath".
Shutting down sham 'charities' and terrorist-owned businesses can’t hurt
the war effort," and it's also worth investigating the possibility that
persons with foreknowledge of the attack might have engaged in options
speculation before and since Sept. 11, which would leave a relatively robust
paper trail. Don't expect much, however, from more generalized efforts
to prevent terrorist supporters from moving less-than-enormous sums around
the globe; there are too many ways around such rules, which are also highly
onerous to the non-terrorist economy (James Higgins, Weekly Standard,
Oct.
8; Michael Lynch, "Following the Money", Reason.com, Oct.
4).
October 3-4 --
Fear of losing welfare benefits deemed coercive. "A Nova
Scotia woman who confessed to cheating the welfare system out of more than
$70,000, can't have her admission used against her in court because she
gave it only out of fear that her benefits would be cut off." Judge
Peter Ross of Nova Scotia Provincial
Court conceded that Brenda Young's case was a "particularly glaring instance
of welfare fraud", but "said her fear of impoverishment meant her confession
was effectively coerced by the state, an action which violated her constitutional
right not to incriminate herself." Young is no longer on the welfare
rolls, however. (Richard Foot, "Judge: confession by welfare cheat
cannot be used", National Post, Sept. 29).
October 3-4 --
Victory (again) in Connecticut. "A unanimous state
Supreme Court Monday threw out Bridgeport's lawsuit against dozens of gun
manufacturers and retailers, saying the city's claims of injury to
its citizenry, budget and reputation are too specious and indirect to litigate."
(Lynne Tuohy, "Court Disarms Gun Lawsuit, Hartford Courant, Oct.
2) (see Dec. 11-12, 1999)
October 3-4 --
"Proposed Law Would Consider Alcohol As Date-Rape Drug".
Liquor may be something that prospective sexual
assault victims consume voluntarily and knowingly, while substances
such as Rohypnol get sprung on them unawares; but backers of the bill introduced
into the Wisconsin legislature by Rep. Terese Berceau (D-Madison) say that
shouldn't make a difference in regarding both substances alike as date-rape
drugs. (WISC-TV/Channel 3000/Yahoo, Sept. 27).
October 1-2 --
"Litigation threatens to snarl recovery". "[S]ome
lawyers are already gearing up for what could be the most complicated web
of litigation in American history. Lawyers across the country are
looking for ways around the victims' fund established as part of a $15
billion government bailout of the airline industry in the wake of the attacks."
During the (still-continuing) litigation over the previous bombing of the
World Trade Center in 1993, plaintiff's lawyers suing the Port Authority
insisted that it turn over as part of "discovery" its internal reports
on terrorist threats and security, even though "Port Authority lawyers
at the time argued that providing the reports would leave security information
open to terrorists for another attack." (Kate Shatzkin, Baltimore Sun,
Sept.
30).
MORE: Signe Wilkinson cartoon, "Unleashing Our Most Feared
Weapon Against Afghanistan" (guess who), Philadelphia Daily News/Slate
("Get Image" for Sept.
27); Alan Fisk, "Calculation of Losses, Liability to Be Major Insurance
Issues in Wake of Terrorism", National Law Journal, Sept.
28; Michael Freedman and Robert Lenzner, "Lawyers Won't Sue, But For
How Long?" Forbes.com, Sept.
19.
October 1-2 --
Ralph Nader is heard from. Addressing students at
the University of Minnesota, the prominent litigation
advocate -- always willing to impute the most evil of motives to his
adversaries at home -- "asked audience members to consider why U.S. foreign
policy is creating enemies. 'We have to begin putting ourselves in
the shoes of the innocent, brutalized people in the Third World and ask
ourselves, why do they dislike our foreign policy?'" Maybe if we referred
to the Trade Center murderers as "Terrorism Inc." he'd mistake them for
a legitimate business and start turning up the rhetorical heat (Jessica
Thompson, "Nader calls for 'permanent patriotism' in Northrop speech",
Minnesota
Daily, Sept.
26). (DURABLE LINK)
October 1-2 --
Chemical-plant vulnerabilities: read all about them.
A "provision of the 1990 amendments to the Clean Air Act requir[ed] that
thousands of industrial facilities develop risk management plans (RMPs)
and submit them to the Environmental Protection Agency (EPA)." One
part of the required analysis "documents the potential impacts of a catastrophic
accidental chemical release assuming the 'worst case scenario." The [analysis]
includes the number of potential fatalities that an accidental release
could cause to the surrounding community. The law then demands that
EPA
make this information available to the public." When an initial plan
was floated to publish such reports on the Internet, "security experts
-- the FBI, CIA, the International Association of Fire Chiefs and various
other groups -- raised alarm." The plan was soon shelved, but "public
interest groups" vowed to make the information broadly anyway in defiance
of the warnings, and a current public availability scheme involving drop-in
"reading rooms" appears highly vulnerable to exploitation by advance scouts
for terrorist operations, who need only present an identification card,
something the Sept. 11 terrorists had little trouble obtaining (Angela
Logomasini, "Innocent no more", Competitive Enterprise Institute/Washington
Times, Sept. 27). (DURABLE
LINK)
October 1-2 --
"Polls say blacks tend to favor checks". "African-Americans,
whose treatment by the criminal justice system gave rise to the phrase
'racial profiling,' are more likely than other racial groups to favor profiling
and stringent airport security checks for Arabs and Arab-Americans in the
wake of this month's terrorist attacks, two separate polls indicate.
"The findings by the Gallup Organization and Zogby International were
met with varying degrees of disappointment and disbelief by black activists
and intellectuals, who struggled with explanations." (Ann Scales, Boston
Globe,
Sept. 30) (see Sept. 19-20).
October 1-2 --
Propulsid verdict: "Robbery on Highway 61". A jury
in Claiborne County, Mississippi deliberated just over two hours before
voting $100 million in compensatory damages to 10 plaintiffs in the first
suit to reach trial against a Johnson & Johnson subsidiary over alleged
side effects of the anti-heartburn medication
Propulsid. "Defense attorney Robert Johnson III of Natchez said in
closing arguments Friday that no evidence was presented in the four-week
trial that showed Propulsid caused any of the plaintiffs' health problems.
He said the plaintiffs' own doctors said there was no evidence the drug
was to blame. ... Stop Lawsuit Abuse in Mississippi executive director
Chip Reno called the decision 'unbelievable.' 'This was highway robbery
on Highway 61," Reno said. 'Our system is broke.'" (Jimmie E. Gates,
"$100M verdict: Propulsid at fault", Jackson Clarion-Ledger, Sept.
29). Judge Lamar Pickard later ruled out punitive damages.
(Deborah Bulkeley, "Judge Bars Drug Trial Punitive Damages", AP/Yahoo,
Sept.
29). Update May
15, 2004: Miss. Supreme Court vacates verdict and orders individual
trials, after earlier reduction of award by trial judge.
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