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ARCHIVE -- OCT. 2001
(III)
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October 31 -- Quote
of the day. Or maybe the year: "If we sue each other,
the terrorists win. We need to be united." -- Personal injury and
class action lawyer Elizabeth
Cabraser, regarding potential Sept. 11 lawsuits. (Quoted in Gail
Diane Cox, "Voir Dire", National Law Journal, Oct. 8, not online)
October 31 -- The
deportation sieve. "For starters, there is the case
of Gazi Ibrahim Abu Mezer and Lafi Khalil, the two Palestinians who were
arrested in July 1997 in a Brooklyn, N.Y., apartment right before they
planned to blow up a subway station. Because both men were in this
country illegally, the inspector general at the Justice Department issued
a report relating solely to their immigration status. I won't bore
you with the whole thing, but it contains such sentences as: 'After Mezer's
third detention in January 1997, the INS had begun formal deportation proceedings
against him, but Mezer had been freed on bond, while the deportation proceedings
were pending...' Yes, ladies and gentlemen, that is how deportation
works: If you are due for a hearing that may kick you out of this country,
you very often are on your honor to show up for the hearing that makes
it official. Shockingly, many do not. (And they sometimes just
out and out lie: Mezer got out of his hearing by phoning his attorney and
telling her that he was in Canada." (Tish Durkin, "Let's Not Bypass
the Obvious in Our Quest for the Profound", National Journal, Sept.
29). The magazine National
Journal, a treasure trove of policy journalism and the home base
of such columnists as Stuart Taylor, Jr. and Jonathan Rauch, is normally
available to online subscribers only, but has temporarily lifted password
procedures during the partial Capitol Hill shutdown to offer full web access
to the public.
October 31 -- Santa
Claus sexist? "Shops are stocking 'Mother Christmas'
outfits to avoid being taken to court over sex discrimination. Woolworths
says it's stocking the outfits in 800 stores to avoid problems with European
gender legislation." A spokeswoman for the European Union, however,
describes as "total bunkum" the idea that selling "Father Christmas" (St.
Nicholas) costumes alone might subject retailers to complaint under regulations
against products reinforcing gender stereotypes. ("Shops stock Mother
Christmas outfits to avoid accusations of sexism", Ananova, Oct.
26).
October 30 -- Bioterrorism
preparedness. A bioterrorist incident could flood
hospitals
in one locality with thousands of persons in need of medical care, but
an official with the
American
Hospital Association says that the group's member hospitals "could
be hindered in their response by federal laws, says Tom Nickels, the association's
senior vice president for federal relations. Antidumping statutes,
which prohibit hospitals from transferring patients to other facilities
unless the patients have been evaluated and stabilized, could undermine
plans to direct patients with specific exposures to specified treatment
centers. Patient-privacy regulations that will go into effect soon could
complicate surveillance programs to detect an outbreak early and to notify
relatives of the status of victims of an attack, he says." (Ron Winslow,
"U.S. Hospitals May Need $10 Billion to Be Prepared for Bioterror Attack,"
Wall
Street Journal,
Oct.
29) (online subscribers only) (via NCPA
Policy Digest).
October 30 -- University
official vs. web anonymity. "A lawyer for the authors
of an anonymous Web site criticizing the University of Louisiana-Monroe
is seeking to block a federal magistrate's order to reveal his clients'
identities. ... Richard Baxter, the university's vice president for external
affairs, wants the names of those behind the site Truth at ULM so he can
file a defamation lawsuit.
U.S. Magistrate James Kirk also ordered Homestead Technologies Inc. to
provide computer logs of all people who have posted, published or provided
any content to the site. The Internet site has called the university
administration incompetent and accused top officials of lying." ("Lawyer
fights order to reveal identities of university critics", AP/Freedom Forum,
Oct.
24).
October 30 -- "Crying
wolf". "In the approximately four and a half years since
[Ontario] made record-keeping of violent crime mandatory," writes the
National
Post's Christie Blatchford, 2,233 of 39,223 complaints of sexual
assault have been shown to have been knowingly false. That amounts
to more than one false accusation per day in Canada's
largest province; British Columbia reports similar rates as a share of
population. The number is a "bare minimum", since authorities have
"adopted strict definitions of what comprises a false allegation."
"Unfounded complaints, where police determine there was no crime but also
that the victim did not intend to mislead investigators, are not tracked
at all."
Why would someone lodge a false allegation? Reasons vary from
the wish to avoid admitting to consensual sex to a craving for attention
to post-breakup revenge to mental illness. Some charges begin on
impulse, then spiral out of control since authorities are obliged to set
an investigative process in motion. One serial "allegator" filed
charges against numerous men, including a dark-skinned stranger who luckily
was able to prove he was out of the country at the time; another of her
targets, a veteran Ontario police officer, though eventually winning vindication,
"was left in ruins, with legal bills, his long and respected career in
tatters, and deserted by even life-long colleagues. ... 'There are two
principles at work in the system right now,' [his lawyer, Bill] Bain told
the Post. 'That children don't lie, and that women are victims.'"
Following pressure on the legal system by feminist and rape-crisis activists,
Bain says, "police became afraid of not laying charges even in dubious
cases, demurring that 'the courts will decide,' while Crown attorneys [prosecutors]
grew 'loathe to exercise their discretion and to live in fear of screwing
up a sexual assault trial.'" And, importantly, complainants seldom
face criminal penalties themselves even for knowingly filing false charges.
(Christie Blatchford, "Crying wolf", National Post,
Sept.
8).
October 29 -- U.S.
Muslims told: don't talk to law enforcement. Three of
the Sept. 11 hijackers, Nawaf Alhazmi, Khalid Al-Midhar and Hani Hanjoor,
lived in San Diego and had many contacts among persons active in a mosque
in suburban La Mesa; others mingled with Muslim communities in Arizona
and elsewhere in the U.S. However, if one American attorney has his
way, law enforcement may not get the kind of free and spontaneous cooperation
they might like from U.S. Muslims who may have information relating to
the three's activities in this country. Attorney Randall Hamud has
left slips of paper for La Mesa mosque-goers which "instruct the reader,
in both English and Arabic, that 'in case of law enforcement questioning
you,' respond as follows: 'I exercise my right to remain silent according
to the 5th Amendment. I exercise my right to have my
attorney, Randy Hamud, present." (Maureen Tkacik and Rick Wartzman,
"Muslim Lawyer Terms FBI Probe Discriminatory", Wall Street Journal,
Oct. 15 (online subscribers only); Ben Fox, "Three held in California as
material witnesses to terror attack", AP/Nando, Sept.
25; Kelly Thornton, "3 local men to be kept in jail indefinitely",
San Diego Union-Tribune, Sept.
26). Press coverage has depicted some other Muslim activists
as discouraging their co-believers from cooperating with inquiries from
the FBI and other agencies.
Persons charged with crimes in this country, of course, are entitled
to have a lawyer and to not be convicted on the basis of self-incrimination,
but it is a rather big jump from there to the premise that free and spontaneous
cooperation by the residents of this country with police inquiries is in
itself something to be discouraged. And it would seem odd to tell
innocent people to invoke the Fifth Amendment privilege against self-incrimination,
since they wouldn't seem to come under that privilege -- or are we missing
something?
MORE: Four terror suspects apprehended under highly suspicious
circumstances after the attacks have stonewalled police inquiries since
then, to the deep frustration of investigators (Walter Pincus, "Silence
of 4 Terror Probe Suspects Poses Dilemma", Washington Post,
Oct.
21; John Leo, "Muslims must shoulder responsibilities as citizens",
TownHall/syndicated, Sept.
25). (DURABLE LINK)
October 29 -- A
belt too far. The survivors of Lori Mason-Larez,
who plunged more than 100 feet to her death from a ride at Knott's Berry
Farm in Orange County, Calif., are suing the amusement park and the ride's
manufacturer, Intamin Ltd., but Sandor Kernacs, president of Intamin, said
the 292-pound woman was "too large to be belted in properly around her
waist". "If the company did try to limit riders according to weight
or waist size, Kernacs said, advocates for the obese would be quick to
challenge the restrictions. 'Basically we cannot discriminate
against anybody,' he said." (Michelle Dearmond, "Manufacturer says woman
was too big for Knott's ride safety restraint", San Diego Union-Tribune,
Oct.
23) (see also Aug. 31, 1999).
(DURABLE
LINK)
October 29 -- Australian
roundup. On Australian TV this summer, viewers heard about
the "dentist and bartender" theories of how lawyers behave, which will
be familiar to longtime followers of this site ("Law Matters with Susanna
Lobez", ABC (Australian Broadcasting Corporation)-TV, July
30; Walter Olson, "Lawyers, Gums, and Rummies", Reason, July
1999). And we never got around to thanking Richard Ackland of
the Sydney Morning Herald for this very kind reference a while back:
"You only have to read of developments abroad in this area, which are religiously
tracked by the marvellous online journal overlawyered.com, to see all the
interesting new twists and plays that are possible in a properly evolved
legal system." ("Lawyers now free to sue the pants off everyone", Feb.
16).
MORE: Justice Thomas of the high court of Queensland recently
wrote: "The generous application of [negligence] rules is producing a litigious
society and has already spawned an aggressive legal industry. I am
concerned that the common law is being developed to a stage that already
inflicts too great a cost upon the community both economic and social.
In a compensation-conscious community citizens look for others to blame.
The incentive to recover from injury is reduced. Self-reliance becomes
a scarce commodity. These are destructive social forces. Also
much community energy is wasted in divisive and non-productive work.
A further consequence is the raising of costs of compulsory third party,
employer's liability, public risk and professional indemnity insurance
premiums. These costs are foisted upon sectors of the public and
in the end upon the public at large. I would prefer that these problems
be rectified by the development of a more affordable common law system,
but in recent times its development has been all in one direction -
more liability and more damages." (Thomas, J., in
Lisle v Brice
& Anor, QCA 271 Queensland Court of Appeal,
July
20 -- opinion
in PDF format). (DURABLE
LINK)
October 26-28 --
"Lawyers see trouble over victims' fund". After
last month's attacks, Congress rushed to enact the Victim Compensation
Fund. But many trial lawyers are now advising victim families to
avoid the fund and prepare for all-out litigation of the sort the legislation
was supposed to forestall. Meanwhile, some expect claims to roll
in from such potentially large and open-ended categories of victim as "people
who say they suffered respiratory distress from the dust cloud kicked up
by the collapse of the World Trade Center" and "workers in nearby buildings
so emotionally debilitated that they can no longer work in a high-rise".
The Association of Trial Lawyers of America "helped shape the law" and
its president Leo Boyle now says that aggregate cost to the taxpayers is
not a legitimate factor to take into account in deciding how much the fund
should pay claimants (''That is not a relevant consideration''); individual
families may ask for tens of millions because they lost high-earning executives.
(Ralph Ranalli, Boston Globe, Oct.
22). If cases proceed to litigation, many lawyers concede that
it will be difficult to prove the "foreseeability" of the outrages, as
needed to prove negligence (Tom McGhee, "Lawyers: Federal plan may not
stem WTC suits", Denver Post,
Oct.
16). Some observers also believe it will be difficult to prove
that it was negligent not to order the immediate evacuation of the second
tower after the first was attacked, not only because of a lack of foreseeability
of the second attack, but because authorities could reasonably believe
that a mass exodus from building two would interfere with the obviously
critical evacuation of building one and expose evacuees to danger from
falling debris if they emerged on the street. (Phil Hirschkorn, "Lawsuits
likely after WTC attacks", CNN, Oct.
10).
October 26-28 --
Abusive workplace language: banned, or federally protected?
A question we've raised before: why is it that the National Labor Relations
Board extends the formal protection of federal law to "abusive language,
vulgar expletives, and racial epithets", requiring employers to refrain
from treating them as grounds for discipline, on the claim that they are
"part and parcel of the vigorous exchange that often accompanies labor
relations'", while at the same time federal harassment law exposes employers
to stiff financial penalties for allowing those same things? An NLRB
decision last year in a case called Adtranz raises the question anew.
Writing for a federal appeals court, Judge David Sentelle called the discrepancy
"preposterous". (Michael Barone, "The Evolution of Labor Law",
Oct.
11).
October 26-28 --
Cartoonist's suit over practical joke. We have never
derived much pleasure or instruction from the work of the cartoonist Ted
Rall, and now we also know that we never, ever, want to play a stupid practical
joke on him like the one that has enmeshed a man named Danny Hellman in
a long-running suit at his hands. "I don’t know if any of you have
ever been on the receiving end of a lawsuit; those of you who have understand
what an emotionally devastating situation it is," writes Mr. Hellman. "We
have gone through months of anxiety riding this out-of-control roller coaster;
only the vengeful individual at the controls knows when it will end." DannyHellman.com
(via InstaPundit: Oct.
21, Oct.
20, Oct.
15) (see letter to the editor, Nov.
29).
October 24-25 --
Suit blames drugmaker for Columbine. "Families of
five Columbine High School shooting victims are suing the maker of an anti-depressant
that one of the student gunmen was taking when he opened fire. A
therapeutic amount of the drug Luvox was found in Eric Harris' system after
he died, the Jefferson County coroner's office has said. Solvay Pharmaceuticals
Inc. makes the drug to treat
obsessive-compulsive disorder and depression." ("Columbine victims' families
sue maker of anti-depressant", AP/CNN, Oct.
21; Allison Sherry, "Drug firm sued over Columbine", Denver Post,
Oct.
21).
October 24-25 --
Don't try rating our judges, or else. Even by Philadelphia
standards, it's an unusually bare-knuckled tactic: three Democratic politicos,
U.S. Reps. Robert Brady and Chaka Fattah and Pennsylvania State Sen. Christine
Tartaglione, have sued a business-oriented advocacy group named Pennsylvania
Law Watch, whom the plaintiffs claim are unlawfully trying to influence
next month's statewide judicial
elections by distributing ratings of judges as pro- or anti-business.
"Imagine," writes one of our readers. "Someone other than lawyers
rating judges. This must be stopped immediately!" Brady et
al want a freeze on Law Watch's assets, the right to go through its
books, an injunction against its activities, and more. (Jeff Blumenthal,
"Philly Politicians File Suit to Stop Pa. Law Watch From 'Influencing Election'",
Legal
Intelligencer, Oct.
22).
According to the Philadelphia Daily News, "State Sen. Vincent
Fumo prompted some controversy last month when he told the Philadelphia
Chamber of Commerce that anyone who helped [Republican judge/candidate
Michael] Eakin by donating to Pennsylvania Law Watch 'should expect to
be arrested,' according to a witness at the chamber meeting, who also said
Fumo mentioned Richard Sprague as a member of a team of attorneys ready
for action." (Chris Brennan, "Dems sue non-profit group, calling
it a PAC", Philadelphia Daily News, Oct.
23). For more on what is considered perfectly acceptable campaigning
when done on behalf of the city's Democratic machine, see our Oct.
12 entry (millions of dollars in "street money" handed out to elect
judges, including at least $500,000 not subject to any public accounting).
Update:
case
already settled, with Law Watch agreeing with Pennsylvania Democrats that
it would not "it would not attempt to influence the statewide judicial
elections through advertising, 'push polling' or any other kind of communication
with the public" (Jeff Blumenthal, "TV Ads Against Ford Elliott Barred",
Legal
Intelligencer, Oct.
23 -- with discussion of related case against a second group).
October 24-25 --
Guarding the spires. "I feel that if a war came
to threaten this, I would like to throw myself into space, over the city,
and protect these buildings with my body." -- said of the Manhattan skyline
by a character in Ayn Rand's novel of New York architecture, The Fountainhead,
1943 (via David Kelley, "The Assault on Civilization", Objectivist Center,
Sept.
13).
October 23 -- Guest
commentary #1. Jay Nordlinger, National Review
Online, on the idea of "trying" Al Qaeda: "The American love of the
courts -- bordering on religious worship -- is pretty much comical in this
instance, which is an instance of obvious and necessary war. Clarence
Darrow, Atticus Finch, and Perry Mason simply have nothing to do with it,
fellas. The attacks on our embassies, the attacks on the U.S.S.
Cole, the attacks of 9/11? War, war, war, and to be treated as such,
properly. That’s why the phrase 'bring them to justice' is an alarming
one. No, bring them to defeat." ("Impromptus",
Oct.
19). A contrary view: Molly Ivins, "There has to be a better
way", syndicated/Sacramento Bee, Oct.
11 (bring World Court case against bin Laden).
October 23 -- Guest
commentary #2. Andrew Sullivan, Sunday Times
(London): "So far, this hasn't happened in America. But the country is
on a knife-edge. Americans aren't like Brits. They have a long
history of requiring almost risk-free living, which is why this is the
land of the trial lawyer and the damages suit. A country that came
up with a tort for the accidental spilling of hot coffee will no doubt
have some difficulty acclimatizing to a world where the deliberate spilling
of anthrax spores is a real and present danger." ("Fear in the air as concern
rises over biochemical attacks", Oct.
14). Actually, we wouldn't say it was "Americans" generally who
demand that life be almost risk-free, so much as one sector of our opinion
-- but point taken.
October 23 -- Hit
after laying on RR tracks; sues railroad. "A homeless
woman is suing Santa Fe Southern Railway over a 1998 accident in which
a train in Santa Fe severed her feet as she was lying
on the tracks at a crossing." Dionne Fresch says the railway
and its conductor and brakeman should have seen her and slowed or stopped
in time; a police report found that the train was going at about 8 mph
and that the engineer had honked before the crossing, as required.
Railway general manager Bob Sarr called the lawsuit "disgusting" and said
the "accident was not the railroad's fault. He said Fresch was lying
under a brown blanket and was indistinguishable from debris when the train
hit her." ("In brief: Woman sues over railroad accident", Santa Fe
New
Mexican,
Oct.
18) (& see Jun. 26-27, 2002).
(DURABLE LINK)
October 22 -- Lawsuit
fears slow bioterror vaccines. "[T]he biotechnology
industry plans to tell Congress that financial incentives and liability
protection for companies would go a long way toward meeting increased demands
for vaccines and medicines to treat bioterrorism agents" such as smallpox
and anthrax. Many companies are eager to participate in emergency
production plans, says Stephan Lawson of the Biotechnology
Industry Organization, but are awaiting legislative assurances that
it will not be self-defeating as a business decision to do so. "The
issue of liability is particularly big since vaccine makers have a long
history of being sued by patients." (Marilyn Chase and Jill Carroll,
"Trial Planned to Stretch Smallpox-Vaccine Supply", Wall Street Journal,
Oct.
15 (online subscribers only); Julie Appleby, "U.S. requesting 300M
smallpox vaccines", USA Today, Oct.
18). See also Scott Gottlieb, "Ammo for the War on Germs", WSJ/
OpinionJournal.com,
Oct.
19 (FDA obstacles); Michelle Malkin, "Who hates the drug industry now?",
syndicated/Jewish World Review, Oct.
17).
October 22 -- Channeling
Chomsky. Ralph
Nader, the world's most prominent litigation advocate, has long kept
many of his views about foreign policy under discreet wraps but now hops
from campus to campus to denounce U.S. policy ascribing our current woes
to our government's not siding with the "workers and peasants" around the
globe. Matt Welch, who puts out a fine "warblog" (recent coinage:
war + weblog), covered
Nader's campaign and even voted
for him for president but now writes of his disillusionment: "I have
discovered, in reading way too much Noam Chomsky lately, that whole phrases
of Nader's admittedly limited foreign policy utterings on the stump were
cut and pasted directly from Chomsky". (MattWelch.com, Oct.
7; Oct.
11; Sept.
20). More: Ronald Radosh, "Nader and the New 'Peace' Movement",
FrontPage, Oct.
18.
October 22 -- Batch
of reader letters. Latest
batch (we still haven't fully caught up with our backlog) deals with
how employers react to workers who jubilate at terrorist acts, legal vetting
of anti-Taliban strikes, disabled rights and the bar exam, a proposal for
a class action over law firms' incremental billing, and whether doctors
should avoid taking on attorneys as patients.
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