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May 20-21 -- "Next
tobacco" watch: gambling. "One of the first state attorneys
general to sue the tobacco industry told a problem gambling conference
Thursday that the gaming business will be the next target for lawyers seeking
compensation for addicts.
As gambling continues to expand in Connecticut and across the country,
'somebody is going to sue somebody,' former Massachusetts Attorney General
Scott Harshbarger told participants at the New England Conference on Problem
Gambling." Harshbarger, who now heads the private group Common Cause,
said "there is a dramatic public health cost, there is a dramatic social
cost" to the wagering habit. "In Canada,
Harshbarger's prediction is already reality. Last week, a judge allowed
a class-action lawsuit against Loto-Quebec to go forward. The lawsuit
seeks hundreds of millions of dollars in damages on behalf of people addicted
to video lottery terminals." (see June
20, 2001) (Rick Green, "Problem-Gambler Suits: Activist Foresees
Damage Claims", Hartford Courant, May
17) (see May 31, Jun.
28-30). (DURABLE LINK)
May 20-21 -- "A
Fence Too Far". "Whether you believe that this country
should be tightening copyright protections
online or loosening them, you should oppose the Hollywood- and record industry-endorsed
bill introduced in March by Sen. Ernest Hollings of South Carolina," argues
commentator Roger Parloff. "While the draft legislation, known as
the Consumer Broadband and Digital Television Promotion Act, pursues plausible
goals, it seeks to achieve them by authorizing mammoth government intrusion
into the design of computer hardware and software." Although Parloff
considered Napster illegal and views the DMCA as constitutional and sensible,
he draws the line at the latest: "The prospect of gumming up the works
of the globe's most exuberant engine of technological innovation and prosperity
by subjecting it to bureaucratic notice-and-comment rule-making is unthinkable.
... If controlling digital property requires government intervention on
this scale, then there should be no such control." (American Lawyer,
May 15).
For more critiques of the Hollings bill, see many items and links on InstaPundit.
(DURABLE LINK)
May 20-21 -- "Trial
Lawyers Go to War Against Arbitration". Trial lawyers
keep trying to kill arbitration as an alternative to the lucrative litigation
process, and Stephen J. Ware, professor of law at Samford University, blows
the whistle on them in a series of new Cato Institute publications ("Arbitration
Under Assault: Trial Lawyers Lead the Charge", Cato Institute Policy Analysis
#433, Apr. 18;
news release;
"Trial Lawyers Go to War Against Arbitration", Cato Daily Commentary, May
3). Ware also rebuts the Nader-founded litigation lobby Public
Citizen, which recently "released a study claiming that it costs significantly
more to resolve disputes through arbitration than through the court system".
("Public Citizen Arbitration Study Contains Errors, Half-Truths and Exaggerations,
Scholar Says", Cato news release, May
3; "Arbitration costs are so high, many victims are unable to pursue
complaints, new Public Citizen report reveals", Public Citizen news release
and link to study, May
1). It might be noted, incidentally, that the same profession
that does so much sniping at arbitration when conducted by anyone else
is perfectly free to get its clients to enter binding arbitration
agreements: "Lawyers can include arbitration clauses in retainer
agreements for fee disputes and malpractice claims so long as the client
consents after receiving full disclosure, an American Bar Association ethics
panel concluded". ("ABA Panel OKs Arbitration Clauses in Retainers Based
on Informed Consent", New Jersey Law Journal, Apr.
16). We hope the lawyer members of ATLA and similar groups will
show the sincerity of their opposition to arbitration by pledging never
to make their own clients sign such an arbitration agreement. (DURABLE
LINK)
May 20-21 -- "The
Trials of John Edwards". The prospective White House run
of trial lawyer/Senator John
Edwards might be just what's needed to politically energize the nation's
doctors at last -- in opposition to Edwards, that is (Radley Balko, "Malpractice
Suits Driving Out Doctors", FoxNews.com, May
9). In National Review Online, Byron York takes issue
with Edwards' rough handling of Fifth Circuit judicial nominee Charles
Pickering: "Edwards's performance was almost a parody of the bad-guy trial
lawyer. In an aggressive cross-examination, Edwards relied
on misleading questions, misrepresented premises, and unfounded conclusions
as he tried to force Pickering to admit wrongdoing. Although Edwards's
style was extraordinarily smooth and polished, it was precisely the kind
of exhibition that reinforces the worst images of trial lawyers — whether
they are running for president or not." ("The Trials of John Edwards",
May 6).
See also Eric Dyer, "Conservative detractors taking swipes at Edwards",
Greensboro (N.C.) News-Record, May
12; Joshua Green, "John Edwards, Esq.", Washington Monthly,
Oct.
2001; Ned Martle, "Starting Gun", New York, May
28, 2001. (DURABLE LINK)
May 17-19 -- Flowers,
perfume in airline cabins not OK? "The Canadian
Transportation Agency has issued a landmark ruling that could affect what
passengers are allowed to take on airplanes,
including pets, flowers and even the perfume they wear. The CTA ruled
that allergies can be considered a disability and said it will investigate
seven complaints against Air Canada by passengers who had allergic reactions
to dogs, cats, flowers and paint." The agency's mandate includes
the removal of "undue obstacles" for disabled
travelers. (Paul Waldie, "Allerge ruling nothing to sneeze at", Globe
and Mail, May
14). For more on anti-scent policies in Canada, see Apr.
24, 2000. (DURABLE LINK)
May 17-19 -- Charged
$16,000 for brief he copied from book. The Iowa Supreme
Court has given a six-month license
suspension to attorney William J. Lane for claiming to have spent 80
hours writing a brief which the court found he had in fact mostly copied
from Barbara Lindemann's and Paul Grossman's "Employment Discrimination
Law," a standard 1996 treatise. Lane, of Sioux City, had submitted
an overall $122,000 fee bill to the court for representing a client in
an Americans with Disabilities Act case, including $16,000 for writing
the brief in question. "Lane plagiarized from a treatise and submitted
his plagiarized work to the court as his own," the court said. "This plagiarism
constituted, among other things, a misrepresentation to the court."
Lane's overall fee award in the case was reduced by about five-sixths,
to $20,000. (Mike Glover, "Lawyer's License Suspended for Plagiarizing
Treatise", AP/Law.com, Apr. 4). (DURABLE
LINK)
May 17-19 -- Ob/gyns
warn of withdrawal. "On May 6, most of the obstetricians
in Las Vegas adopted a policy of rejecting newly pregnant women as patients,
even if the woman was an existing patient." (Wendy McElroy, "Lawsuits
Fueling Health Care Crisis", Fox News, May
14). The American College of Obstetricians and Gynecologists
has issued a "Red Alert" warning that shortages of liability insurance
may soon leave many areas of the country, particularly rural areas, without
adequate obstetric services.
(Ed Susman, "Obstetricians issue alert on insurance", UPI Science News,
May
6; Marilyn Elias, "Obstetricians dwindle amid high malpractice costs",
USA Today, May
6). And at medical weblog MedPundit,
Sydney Smith offers a rebuttal to an op-ed piece in which the president
of the Association of Trial Lawyers of America blames the malpractice crisis
on "negligence of bad doctors and the bad business decisions of insurance
companies". (MedPundit, May
15; Leo V. Boyle, "It's not patients' fault when insurance earnings
dip", Akron Beacon Journal, Apr.
14) (DURABLE LINK)
May 16 -- TV's
lawyer dramas: why they hit home. "What many of these
shows do best is attack the legal system for being obsessed with achieving
correct legal results even if the outcomes are morally wrong. ... The greater
cynicism and resentment [in jokes about lawyers] is reserved for the moral
lapses and legal hair-splittings, the way in which the demands of lawyering
furnish a license to engage in dishonest behavior. 'Lawyers go into court
and deny what they know to be true,' said William Finkelstein, another
former lawyer and executive producer of 'L.A. Law,' who produced and wrote
[a reunion show for the series that aired May 12]. 'Whenever anyone
does that, it doesn't square with our vision of public morality, and on
television we try to get underneath that, or reject it entirely.'" (Thane
Rosenbaum, "Where Lawyers With a Conscience Get to Win Cases", New York
Times, May
12)(reg). Meanwhile, the American Bar Association is the latest
establishment law group to conduct a public survey finding that lawyers
are poorly regarded by the public, a phenomenon it chooses to blame --
you guessed it -- on negative media portrayals rather than anything real
about today's legal system that the media might be picking up on.
(Mary P. Gallagher, "ABA Survey Finds Lawyers Among Lowest-Regarded U.S.
Professions", New Jersey Law Journal, May
7). (DURABLE LINK)
May 16 -- Catharine
MacKinnon, call your office. Latest case illustrating
how sexual harassment law can be
turned to purposes rather remote from those one associates with feminism:
"In a federal lawsuit brimming with biblical references, a Tennessee administrative
law judge charges that her supervisors have created a hostile work environment
for women and that she has been the victim of discrimination because of
her religious beliefs." The lawsuit by Blair Scoville Morgan, 45,
against her employer, the Tennessee Department of State, charges that co-workers
circulated sexually explicit jokes in email and that "her religious belief
that homosexuality is a sin puts her at odds with someone in her office".
"'The plaintiff is a Bible-believing Christian who holds to the orthodox
belief that the Bible is absolutely true; the Bible contains no mistakes;
and the Bible has no contradictions or inconsistencies,' her suit states,
before listing citations from Psalms, Proverbs, John and Revelations.
Biblical references aside, the suit is also filled with language often
found in federal discrimination cases." Morgan charges that she was
assigned a heavier workload and drew poorer evaluations than she deserved,
and that "when she posted notices on department bulletin boards about the
National Day of Prayer last year, they were taken down without her permission".
(Rob Johnson, "Judge files bias suit against state office", The
Tennessean, May
7). (DURABLE LINK)
May 16 -- Annals
of zero tolerance: steak knives, finger "guns". The Washington
Times has an overview of zero
tolerance controversies which mentions this site (Valerie Richardson,
"Zero tolerance takes toll on pupils", May
13). In Leesburg, Ga., 18-year old Lee County High School senior
Chet Maine "was expelled three weeks before graduation after school officials
found two steak knives in the bed of his pickup truck. ... Maine claimed
the knives were left over from a weekend camping trip he had taken with
friends. But the county school said it was bound by a state zero-tolerance
policy for weapons in school." (AP/WTLV (Fla.), May
8). In Colorado, "Dry Creek Elementary school has disciplined
seven boys for playing a game of 'army and aliens' in which they used their
fingers as imaginary weapons and pretended to shoot creatures in the background.
... And, in an Orwellian touch, at least one student was interrogated by
school officials who asked whether his family had real guns at home." ("Zero
common sense" (editorial), Denver Post, May
15; Robert Sanchez, "Zero tolerance turns into 100 percent trouble",
Rocky Mountain News, May
14; "Overreacting to gun games" (editorial), May
15; Mike Littwin, "Not to point fingers, but schools really need to
get a grip", May
16). At Mellon Middle School in Mt. Lebanon, Pa., 11-year-old
Becca Johnson was suspended for drawing stick-figure doodles of teachers
with arrows through their heads, in a moment of frustration after she had
done badly on a test; the same week, "a 17-year-old in Fayette County,
Ga., was suspended and arrested when school officials found a machete he
used in his part-time landscaping business in the back of his truck, which
he'd driven to school." (Dean Schabner, "Zero for conduct", ABCNews.com,
May
8). (DURABLE LINK)
May 14-15 -- Officious
intermeddlers, pet division. Animal-rights
lawyers are looking for the perfect chimp case to establish their right
to file legal actions on behalf of animals; U. of Chicago law prof and
frequent New Republic contributor Cass Sunstein, like Harvard's
Larry Tribe (see Apr. 29), seems on board
with the plan. The article's scariest bit appears toward the end,
where the executive director of the Animal Legal Defense Fund says the
fund is getting involved in "custody battles over pets" such as cats and
dogs: "the fund has been submitting legal briefs to the courts, suggesting
that judges look at the case in terms of the animal's interest." Just what
divorce law needs: an influx of
ideologically motivated outside lawyers filing new paperwork to which spouses
will have to pay their lawyers to respond, and perhaps urging judges to
impose "remedies" over the objections of both human parties.
And how long before they start asking the judge to subtract a suitable
fee from the marital estate to compensate them for their animal-advocacy
efforts? (Amanda Onion, "Fighting for Moe: Activists Pursuing Legal
Status for Animals One Case at a Time", ABC News.com, May
13). P.S. Or could "custody battles
over pets" refer to something other than family law cases? The ALDF
website doesn't seem to mention any cases fitting that description.
(DURABLE LINK)
May 14-15 -- New
York Times endorses liability reform! With respect
to lawsuits against City Hall, at least. Well, it's a start ("Slip,
Fall, Collect" (editorial), May
13 (reg)). (DURABLE LINK)
May 14-15 -- "Tilting
the Playing Field". While on the subject of pleasing if
belated developments at the Times, the paper has now officially
taken note of the devastation visited by the federal government's Title
IX on "smaller" men's collegiate sports such as track and field, wrestling,
and diving (Bill Pennington, "More Men's Teams Benched, As Colleges Level
the Field," New York Times, May
9 (reg)) (our take
on Title IX). See also Kathryn Lopez, "Benched at Bowling Green",
National Review Online, May
10) (men's sports at Bowling Green State U.) In a new book entitled
Tilting
the Playing Field, Jessica Gavora not only recounts the sad history
of quota-mongering in collegiate sports participation but warns that feminist
litigators are rapidly pushing the mandates of Title IX into academic
areas. Perhaps most alarming is the prospect of an assault on numerical
imbalances in the hard sciences: "to get the numbers right, universities
likely will end up having to discourage men from pursuing scientific and
engineering careers." (Nick Schulz, "Feminism vs. Sports and Science",
TechCentralStation, May
10). (DURABLE LINK)
May 14-15 -- The
mystery of the transgenic corn. In March a federal judge
approved the settlement of a class action
lawsuit filed after the disclosure that genetically modified corn had found
its way into products on grocery shelves in violation of an EPA
permit which gave it the green light only for use as animal feed.
The food companies "will attach $6 million in coupons, each good for a
dollar off, to packages of their products. ... The Chicago law firm of
Krislov and Associates will receive $2.4 million for filing the class action
lawsuit on behalf of consumers who said they suffered allergic reactions
from eating food products that contained the genetically modified corn."
Too bad the case settled, since we would have looked forward to hearing
the expert testimony about those claimed allergic reactions (Mike Robinson,
"Judge Approves $9M Settlement in Engineered-Corn Suit", AP/Law.com, Mar.
8). (DURABLE LINK)
May 13 -- "Friends
Don't Let Friends Plead Guilty". This slogan, for a lawyer
who defended accused drunk drivers, made for "one of the most effective
ads I've seen", though "I'm not
sure I agree with the sentiment, either as an ethical matter or a pragmatic
matter". (Eugene Volokh, Volokh brothers blog, May
10). (& see letter to the editor, Jun.
14 (pointing out website of L.A. law firm that has trademarked this
phrase)). (DURABLE LINK)
May 13 -- "The
Tort Mess". "It's even worse than you think."
Cover story in Forbes tours some of the best-known lawsuit disaster
areas including Mississippi medical practice, asbestos litigation, condo
construction-defect suits (Michael Freedman, Forbes, May
13). Plus: opinion pieces on similar themes (Alex F. Rubalcava,
"The Cost of Legal Extortion"", Harvard Crimson, Apr.
17; Pejman Yousefzadeh, "Delay No Longer", TechCentralStation,
Apr.
8). (DURABLE LINK)
May 13 -- Bush's
big mistake on mental health coverage. Commentators have
given the president pretty much a free pass on his call for forcing health
insurance plans to cover mental-health services at some rate that reflects
"parity" with therapy for physical illness. Potential critics
may hold their tongues for fear of being charged with ignorance about mental
illness or animus toward those it affects. But the "Bush plan is
vintage Clinton: Give Washington the credit for doing good, but send the
private sector the bill, and let someone else worry about the consequences."
(Steve Chapman, "Delusions on mental-health treatment", Chicago Tribune,
May
9). (DURABLE LINK)
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