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ARCHIVE -- SEPT. 2001
(III)
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September 28-30 --
Draconian hacker penalties? The counter-terrorism act
(whose contents, as we have mentioned before, keep changing) was drafted
to include what critics say are extraordinarily severe penalties for low-level
forms of computer trespassing that
bear no relation to terrorism. (Matthew Broersma, "EFF: Bill treats
hackers as terrorists", ZDNet (UK), Sept.
27; Kevin Poulsen, "Hackers face life imprisonment under 'Anti-Terrorism'
Act", SecurityFocus.com, Sept.
23). More on the bill's progress: Declan McCullagh, "Congress
Weighs Anti-Terror Bill", Wired News, Sept.
25; "Wiretap Bill Gets Third Degree", Sept.
26; Jonathan Ringel, "Surveillance Major Sticking Point in Anti-Terrorism
Legislation", American Lawyer Media, Sept.
26.
September 28-30 --
Terrorists, American business execs compared. Was
it a passing lapse of taste, sense and perspective in the early shock of
the disaster that led New York Times columnist Thomas Friedman to
compare the struggle against terrorism to the campaign against ... cigarette
companies? In his first column after the attacks, Friedman wrote
that we need to encourage defections from within the world of Muslim extremism,
just as "Americans were really only able to defeat Big Tobacco when whistleblowers
within the tobacco industry went
public and took on their own industry, and their own bosses, as peddlers
of cancer." A very fair analogy, that! ("Smoking or Non-Smoking?",
Sept.
14). And the way-out-there-leftist website TomPaine.com,
from which we don't really expect better, gave us this gem in January of
last year: "The hype [about a terrorist threat] is unfounded, largely because
there is no evidence of a world wide terrorist conspiracy against the U.S.,
and the few alleged terrorists that have actively targeted U.S. citizens
have done so infrequently." From stupidity the article proceeded
to viciousness: "The actions of business executives -- from tobacco sellers
to weapons manufacturers -- claim the lives of hundreds of thousands of
Americans every year -- 38,505 gun-related deaths in 1994, 6,112 workplace
fatalities and 500,000 deaths from smoking in 1996 -- many times more than
the handful of terrorist incidents. These are the people we should
be afraid of, and seek to restrain, rather than fictional characters that
have more to do with Hollywood hype than political reality." (Roni Krouzman,
"The Terrorism Scare", TomPaine.com,
Jan.
19, 2000) (via WSJ OpinionJournal.com "Best of the Web", Sept.
17). What is it to bomb the World Trade Center, after all, compared
to the more menacing status of being the sort of business exec who would
work in it? See also MichaelMoore.com, "Mike's Message",
Sept.
19 (attributing character of Osama Bin Laden to his family's being
in the building contractor trade). (DURABLE
LINK)
September 28-30 --
Privacy claim by Bourbon Street celebrant. Just because
she cavorted topless in New Orleans' French Quarter during Mardi Gras doesn't
mean it was okay to videotape her and use the resulting footage in a compilation
release entitled "Girls Gone Wild!". "They're really exploiting her,
victimizing her," says one of her lawyers; the idea that there might be
cameras
around doesn't seem to have crossed her mind at the time. (James
L. Rosica, "Poster girl sues makers of videos", Tallahassee Democrat,
Sept.
18)(& see update Mar. 6, 2002).
September 27 --
Rush to reconcile. Different things seem important
now, cont'd: "Dismissals in divorce cases have skyrocketed in the Harris
County Family Law courts since the terrorist attacks of Sept. 11. Family-law
attorneys have found that clients contemplating divorce, as well as those
in the middle of one, now say they will try to patch things up." (see Sept.
18) (Mary Flood, "Couples want peace at home", Houston Chronicle,
Sept.
25).
September 27 --
"Shooting range sued over suicide". "The family of a woman
who shot herself in the head sues a business for renting her the gun."
She came in to the shooting range with her husband; the lawyer says the
attendant should have seen that she'd been drinking (St. Petersburg Times,
Sept.
25).
September 27 --Force
majeure fights. Do the events of September 11 constitute
a material change in circumstances, thus entitling businesses to get out
of merger deals and other contractual obligations? Squabbling over
that issue "should keep attorneys busy for years. 'Unfortunately,
there will be litigation, whether it's meritorious or not,' says James
Salzman, a law professor at American University." ("Collateral Damage",
Michael Freedman and Daniel Kruger, Forbes, Oct.
15).
September 27 --
Where towers stood.
Who knows how empty the sky is
In the place of a fallen tower.
Who knows how quiet it is in the home
Where a son has not returned.
-- Anna Akhmatova (1889-1966) (via
Alex Beam, Boston Globe, Sept.
18, who says it's from a cycle of poems, "Youth")
September 25-26 --
Vast new surveillance powers for state AGs? Mickey Kaus,
on Kausfiles.com, expresses rightful
unease about a most unpleasant little surprise in the counterterrorism
package: he doesn't "see why state attorneys general, the biggest showboaters
in American politics, need to be given the power to employ the FBI's 'Carnivore'
email-tapping
program without a court order." He suggests they'll "probably
use it to ferret out tobacco users and sue them". ("Hit Parade",
Sept.
22; see also Jacob Weisberg, "Microsuits: Why state attorneys general
are suddenly suing everybody",
Slate, May
22, 1998). (But note that the contents of the legislative
package keep changing rapidly; we couldn't locate such a provision in the
draft versions we consulted on the Electronic
Frontier Foundation site.)
September 25-26 --
Legal botches encouraged terrorists. "The international
jihad arrived in America on the rainy night of Nov. 5, 1990, when [El Sayyid]
Nosair walked into a crowded ballroom at the New York Marriott on 49th
Street and shot and killed [extremist political figure] Rabbi Meir Kahane...
With a room full of witnesses and a smoking gun, the case against Nosair
should have been a lay-down. But the New York police bungled the
evidence, and Nosair got off with a gun rap. At that moment, Nosair
and [sidekick Mahmud] Abouhalima may have had an epiphany: back home in
Egypt, suspected terrorists are dragged in and tortured. In America,
they can hire a good lawyer and beat the system." (Evan Thomas, Newsweek/MSNBC,
Oct.
1).
September 25-26 --
Third Circuit cuts class action fees. In a long-awaited
ruling, the 3rd Circuit federal court of appeals last month ordered that
a $262 million award of lawyers' fees be slashed to a yet undetermined
level in a $3.2 billion settlement of class
action securities litigation against Cendant Corp. and its auditors,
Ernst & Young. Objectors had argued that the case had been relatively
easy to prove and that the award would pay lawyers at least 45 times their
usual rates. The court "also criticized the use of 'auctions' to
appoint lead plaintiffs' counsel in securities class action cases".
(Shannon P. Duffy, "Cendant $3.2 Billion Settlement Upheld, but Attorneys'
Fee Award Must Be Reduced",
The Legal Intelligencer, Aug.
29) (see June 20 and Sept.
4, 2000).
The fee squabble had cast a spotlight on the tendency of many big
class
action firms to contribute heavily at campaign time to elected
officials who by controlling state pension funds can put these lawyers
in line for big fees by designating them to represent the state in such
actions. "Milberg Weiss gave $127,125 to New York state candidates
since 1999, including $16,000 to state auditor Carl McCall's campaign for
the Democratic nomination for governor," and Barrack Rodos and Bernstein
Litowitz have pumped big contributions into such states as Pennsylvania,
California and Louisiana. The lawyers hired Harvard law prof Arthur
Miller to defend their $262 million fee. (Tim O'Brien, "3rd Circuit
Reviews Fees, Counsel Choice in Cendant Class Action Settlement, New
Jersey Law Journal,
June
4).
In a separate decision, involving a suit against CBS, the same appeals
court ruled that "lawyers who represent shareholders in derivative actions
[i.e., vicariously on behalf of the corporation] are not entitled to any
fees unless the suit benefited the corporation." It overturned a
deal which would have given attorneys more than $580,000 in fees; the attorneys
had claimed that the settlement of their derivative suit benefited shareholders
by clearing the way for a $67 million settlement of a class action suit,
but the judge said the test of benefit was whether shareholders were better
off for its having been filed in the first place, not for its having been
settled. (Shannon P. Duffy, "3rd Circuit Takes Back $580K in Lawyers'
Fees", The Legal Intelligencer, Sept.
21).
September 25-26 --
"Asbestos column raised awareness". Steven Milloy of JunkScience.com
fields reader reaction to his column raising the question whether asbestos
insulation might have enabled the WTC towers to hold out longer before
their collapse (FoxNews.com, Sept.
21) (see Sept. 17, 18).
September 24 --
From mourning to resolution.
There is sobbing of the strong,
And a pall upon the land;
But the People in their weeping
Bare the iron hand;
Beware the People weeping
When they bare the iron hand.
-- Herman Melville, "The Martyr", on
Lincoln's assassination (via AndrewSullivan.com
and John Ellis, FastCompany)
September 24 --
"Despite Protection, Airlines Face Lawsuits for Millions in Damages".
The newly passed bill puts the federal government and its taxpayers on
the hook for costs of further terrorist strikes in the near term, and assists
the airlines in their quest for insurance,
but does less than one might imagine to shield them (and a long list of
other defendants) from lawsuits over the Sept. 11 attack. (Charles
Piller, L.A. Times, Sept.
22). It does not restrict filing of mass suits on creative theories
based on damage on the ground, but instead gives victims a choice of whether
to apply for government compensation through a "special master" in lieu
of suing. Trial lawyers have already begun volunteering to help claimants
with the special master process, which could put them in a position to
steer those claimants back toward court-based options, especially if the
taxpayer-funded compensation packages prove less than generous. And
the airline bailout, which includes billions in cash subventions, may come
at a high cost of future Washington entanglement for the industry: "A last-minute
addition to [the bill] will let the federal government take equity stakes
in the cash-strapped carriers and may even open the door to a government
role on their corporate boards, lawmakers said on Friday." (Adam
Entous, "Airline Bailout Allows US to Take Stake", Reuters/Yahoo, Sept.
21) (Yahoo
Full Coverage).
September 24 --
Blame video games, again. Expect renewed scrutiny
of both videogames and flight simulator software, either of which might
assist bad guys as well as good guys in honing skills relevant to lawlessness
in the air. (David Coursey, "How video games influenced the attack
on America", ZDNet, Sept.
21; Marc Prensky, "Video games and the attack on America", TwitchSpeed.com,
undated).
On earlier rounds of agitation against game makers and entertainment companies,
see Gwendolyn Mariano, "Columbine victim families sue over violent games",
ZDNet, April
24, and collected commentaries
on this site.
September 24 --
Miami jury to Ford: pay $15 million after beltless crash.
It wasn't one of the much-publicized Explorer/Firestone cases, but instead
arose from the rollover accident of an Econoline van none of whose twelve
occupants was wearing seatbelts. A Ford spokeswoman criticized the
verdict: "'No proof of a manufacturing defect was shown,' she said.
'This was simply a tragic accident compounded by passengers not being belted.'''
("Ford to Pay $15 Million in Rollover Case", Reuters/FoxNews.com, Sept.
21). And the Association of Trial Lawyers of America is showcasing
on its website an $18 million jury verdict against GM in favor of an 18-year-old
driver who fell asleep at the wheel at 70 mph in his Chevrolet S-10 Blazer
SUV. The automaker "tried to
introduce evidence that plaintiff had a blood alcohol level between .04
and .07 at the time of the accident, which was illegal given his age.
[Plaintiff's attorney Michael] Piuze successfully moved to exclude this
fact on the ground that plaintiff had admitted his responsibility for the
accident." (ATLA Law Reporter, May
-- Lambert v. General Motors).
September 21-23 --
"The high cost of cultural passivity". "FAA's silly rules
did exactly nothing to stop the hijackers" (Mark Steyn, National Post,
Sept.
17; "Making it safe to fly" (letters to the editor), Washington Post,
Sept.
21). What did help was the revolt of the heroic passengers on
United Flight 93 (Rick Reilly, "Four of a Kind", Sports Illustrated,
Sept.
19; Dan LeBatard, "Final heroic act not forgotten by the many saved",
Miami Herald, Sept.
20; some particularly good commentaries from Virginia Postrel on Sept.
20 and earlier days;
proposal
for a monument to them). Writes Lisa Snell: "I would rather be
on a hijacked airplane with someone inoculated by Power Rangers than someone
who believes the inherent message of every school institution: that weapons
are bad and that the authorities and the government will solve all problems
and protect you" (quoted by Joanne
Jacobs, Sept. 14).
September 21-23 --
Judge to "Sopranos" suit: Fuhgetaboutit. Free
speech prevails: "A judge on Wednesday dismissed a lawsuit filed by
an Italian-American organization that accused the makers of the HBO television
series 'The Sopranos' of offending Italian-Americans by depicting them
as mobsters. ....The American Italian Defense Association sued Time Warner
Entertainment Co. under the 'individual dignity' clause of the Illinois
Constitution." (AP, link now dead; "Judge dismisses 'Sopranos' lawsuit",
MSNBC/Reuters,
Sept. 19)
(see April 6-8).
September 21-23 --
"Don't sacrifice freedom". We can win this one without
giving up what makes us Americans (Glenn Reynolds, FoxNews.com, Sept.
14; Dave Kopel, "Don't Press the Panic Button", National Review
Online, Sept.
21; Stuart Taylor Jr., "Thinking the Unthinkable: Next Time Could Be
Much Worse", National Journal/The Atlantic, Sept.
19; E. J. Dionne, "To Go On Being Americans", Washington Post,
Sept.
14).
September 21-23 --
"Lawsuits From Attacks Likely to Be in the Billions".
Trial lawyers speculate about various targets for the vast amount of litigation
they intend to file; on the list are airlines, New York's much-sued Port
Authority and a great many others. (Robert Gearan, New York Daily
News, Sept.
19; "In aftermath of terror attacks, lawyers holding off on lawsuits,
but they're coming", ABCNews.com, Sept.
20; "Attorneys hold off on flurry of lawsuits", USA Today, Sept.
21; "S&P: Airlines Need Relief From Lawsuits", Reuters/Yahoo, Sept.
20).
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