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ARCHIVE -- MAY 2002 (III)
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May 31-June 2 --
Welcome Fox News viewers/readers. Our editor is interviewed
on air and quoted in print in this piece on the quest to make casinos and
lottery operators the next Big Tobacco (Alisyn Camerota, "Trial Lawyers
Target Gambling", Fox News, May
31) (see May 20-21).
(DURABLE LINK)
May 31-June 2 --
"After stabbing son, mom sues doctors". Pennsylvania:
"Janice Taylor, who stabbed
her 4-year-old son two dozen times outside their Lake Ariel home in 2000,
is suing her doctors for
not adequately responding to her psychosis as she neared the end of a pregnancy."
(Scranton Times Tribune, May
29). (via WSJ OpinionJournal "Best
of the Web", May 30). (DURABLE
LINK)
May 31-June 2 --
Activist judges north of the border. In the United States
judicial activism has been falling into gradual disrepute for a quarter
century, but in Canada many highly
placed jurists seem eager to boogie like it's 1975: the Ontario Court of
Appeal has just struck down as unconstitutional one of the central planks
in welfare reform, the principle that recipients with live-in boyfriends
should not draw benefits accorded to single mothers. It's only the
latest in a long string of decisions in which judges seem to be writing
their own preferences into law, according to columnist Christina Blizzard.
Earlier this year the Supreme Court of Canada struck down as unconstitutional
a Conservative government's repeal of a law authorizing unionization of
workers on family farms, although the effect of the repeal would only have
been to revert to the state of the law as of a couple of years previously.
Next up: a challenge to another plank of welfare reform, a lifetime ban
on payment of benefits to persons caught cheating the system. Paging
Mickey
Kaus -- they need you up there! (Christina Blizzard, "Disorder in the
court", Toronto Sun/Canoe,
May
18). On U.S. judicial activism, see John Leo, "Running away with
the law", U.S. News/Jewish World Report, May
13. (& see letter to the editor, Jun.
14). (DURABLE LINK)
May 31-June 2 --
Folk medicine meets child abuse reporting. The Vietnamese
and Hmong folk remedy cao gio, or coining, "involves the rubbing
of warm oils or gels across a person's skin with a coin, spoon or other
flat object. It leaves bright red marks or bruises, but many Asian families
believe the marks represent bad blood rising out of the body and allow
improved circulation and healing." The lesions are typically not
of medical significance, according to many Western medical observers, but
they sometimes lead school and social
service workers to report suspected child abuse, in part owing to the
influence of laws mandating that possible instances of abuse be reported
even if borderline. In Omaha, following such reports, police swooped
down and removed ten children from their parents; following an outcry,
charges against the parents were dropped and the children were returned
to their homes. (Omaha World-Herald coverage including Joe
Dejka, "Asian couples work to get children back", May
3; Jeremy Olson, "Asian remedy raises few alarms elsewhere", May
3; Joseph Morton, "2nd coining case dropped; Asian family expresses
relief", May
14; Karyn Spencer and Angie Brunkow, "Officials not sanctioning all
'coining'", May
17). (DURABLE LINK)
May 30 -- "Oxy
Morons". "Last fall," reports Forbes, North Carolina
law firm Lutzel & Associates "sent a letter soliciting
users of [time-release pain medication] Oxycontin and several other
drugs. Claiming that the Food & Drug Administration had 'banned'
the medications, the letter advised them to 'stop using' the drugs immediately."
But in fact Oxycontin was neither banned nor threatened with removal, and
for a patient suffering pain suddenly to discontinue its use without a
doctor's recommendation can result in medically serious consequences as
well as needless agony. (Ian Zack, "Oxy Morons", Forbes.com, Apr.
29). Despite vigorous efforts by some plaintiff's lawyers to
stoke mass tort litigation
over the drug (see Apr. 10 and links from
there), the National Law Journal reports that drugmaker Purdue Pharma
has "had a string of confidence-building victories in early litigation."
(Bob Van Voris, "OxyContin Maker Not Yet Feeling Much Pain", National
Law Journal, April
30). (DURABLE LINK)
May 30 -- "Privileged
chambers". Earlier this year the Albany Times Union
ran a five-day editorial series ("Unequal
Justice" -- scroll down to find it) on judicial misconduct in New York
state. It concluded that discipline
is generally lax when Empire State judges behave badly and that it can
take years to remove a jurist from the bench even after charges of serious
misconduct ("Privileged chambers", Feb.
3; "Justice denied", Feb.
4; "Conduct unbecoming", Feb.
5; "Starving the watchdog", Feb.
6; "The need for reform", Feb.
7). (DURABLE LINK)
May 29 -- Our editor
interviewed. John Hawkins at Right
Wing News interviewed our editor by email about this site and our ideas
on legal reform, and publishes the results this morning ("An
Interview with Walter Olson"). Earlier interviewees in the series
include Glenn
Reynolds of InstaPundit, Wendy
McElroy of iFeminists and FoxNews.com, and Australian journalist Tim
Blair. Update: nice things said about this by Protein
Wisdom, VodkaPundit,
and Eve
Tushnet.
May 28-29 -- The
scandal of the Phoenix memo. It warned FBI higher-ups
that Islamic radicals including followers of Osama bin Laden were training
at American flight schools. So why wasn't it followed up? FBI
director Robert Mueller told Senators May 8 that it would have been a "monumental
undertaking" to investigate the 20,000 or so students at domestic flight
schools. "What a load of nonsense," writes Christopher Caldwell.
"Any small-town newspaper reporter could have narrowed down that 20,000
to under a hundred in an afternoon, just by focusing on names like ...
oh, I don't know ... try Mohamed, Walid, Marwan, and Hamza. Couldn't
the entire FBI have done the same?
"As it turns out, no. And the reason is, whoever got Williams's
memo would understand that there is one commonsensical way to implement
it: Look for Arabs. And given congressional pressure on racial profiling
and the president's own outrageous pandering on the subject during the
2000 election campaign, Williams's lead was something no agent with an
instinct for self-preservation would want to touch with a barge pole."
(Christopher Caldwell, "Low Profile", Weekly Standard, May
24) (via WSJ Best of the Web, May
24). See also John Fund, "Willful Ignorance", WSJ OpinionJournal.com,
May
22; "Key Lawmaker: Probe of FBI Warrant Will Look at 'Racial Profiling'
Concerns", AP/Fox News, May
26). Update: perfect Mark Steyn column ("Stop frisking
crippled nuns", The Spectator, May
25). (DURABLE LINK)
May 28-29 -- "Rocketing
liability rates squeeze medical schools". "The University
of Nevada School of Medicine in Reno could be forced to close if it can't
find affordable liability insurance
by June 30. In West Virginia, Marshall University's Joan C. Edwards
School of Medicine in Huntington has cut its pathology program and is trimming
resident class size. Pennsylvania State University College of Medicine
in Hershey is cutting faculty salaries, which will make it hard to land
top researchers. 'The sudden, very large increase in expenses that were
not anticipated or budgeted is creating a great deal of anxiety,' says
Jordan J. Cohen, MD, president of the Assn. of American Medical Colleges."
(Myrle Croasdale, American Medical News, May
20). (DURABLE LINK)
May 28-29 -- "Barbed
wire might hurt burglars, pensioner warned". In Northampton,
England, 94-year-old Ruby Barber has finally gotten permission from the
borough council to put barbed wire on her garden walls after suffering
four break-ins to her bungalow over the past year and a half. The
council granted permission "as long as she uses warning signs and agrees
to take full responsibility
if a would-be intruder is injured". Her son Burt, who lives nearby,
said: "It is bordering on the ridiculous to say that if they hurt themselves
getting in here I am responsible. The Queen has got it all around
Buckingham Palace and if it is good enough for her it is good enough for
my mother. She is the Queen to me." (Ananova, May
24). (DURABLE LINK)
May 28-29 -- Must-know-Spanish
rules defended. Recently it was reported that a Miami
social services agency was requiring an Anglo worker to learn Spanish on
pain of losing her job. Some commentators were upset, but Eugene
Volokh, of the Volokhii, argues that "speaking a foreign language
is a valuable skill, and ... employers may legally discriminate against
employees who lack this skill". (Volokh blog, May
8, May
11; Jim Boulet Jr., "Mandatory Spanish", National Review Online,
May
10, and running
commentary by Boulet at English First site). And the factual
background of the case turns out to be considerably less simple than first
reports indicated; not only does the county deny that failure to learn
Spanish was the reason for the worker's firing, but it seems she held herself
out as having "proficiency" in that language when she accepted the job
(Jay Weaver, "Poor work, not language barrier, got employee fired, court
says", Miami Herald, May
11). (DURABLE LINK)
May 28-29 -- Goodbye,
Wendell Barry. Eve Tushnet administers a well-deserved
thrashing to the overrated localist ("Hayseeds and Straw Men", Eve Tushnet
blog, May
27) (DURABLE LINK)
May 27 -- McArdle
on food as next-tobacco. "If you can't be held responsible
for what you put in your
mouth, what are you responsible for?" (Megan McArdle, "Can We
Sue Our Own Fat Asses Off?", Salon, May
24). See also Duncan Campbell, "Junk food firms fear being eaten
alive by fat litigants", The Guardian, May
24; Jacob Sullum, "Food Fight", Reason Online, May
10 (& see Jun. 3-4). (DURABLE
LINK)
May 27 -- "Lawsuit
stifles Internet critics". The Richmond Times-Dispatch
and Long Island Business News have new stories out on the PetsWarehouse
case (in which a pet store owner has sued aquatic plants hobbyists on charges
of online defamation based on their postings on mailing lists and websites
-- see Aug. 6, 2001 & May
22, 2002). Both interview several parties, including defendant
Dan Resler (a professor at Virginia Commonwealth University), plaintiff
Robert Novak, and (in the Richmond paper) free-speech law commentator Rodney
Smolla. A key factor working to defendants' disadvantage: liberal
jurisdictional rules which allow a plaintiff to file an Internet libel
case in his local court (in this case the Eastern District of New York)
and force defendants who live in distant states to shoulder the cost of
litigating there from a distance. (Gordon Hickey, "Online speech
not free", Richmond Times-Dispatch, May
26). In Long Island Business News, owner Novak is quoted
as being aware of this cost asymmetry: "'It's only five miles for me,'
he said. 'All these people have to come here at their own expense.'"
(Ken Schachter, Long Island Business News, "PetsWarehouse.com founder
dries out aquarists in courts", May
24-30). More on Internet jurisdiction: Carl S. Kaplan, "A Libel
Suit May Establish E-Jurisdiction", New York Times, May
27 (reg). Update Oct. 4-6: Novak
sues Google and other defendants. Further update: Oct.
5, 2003. (DURABLE LINK)
May 24-26 -- Nader
credibility watch. In France, the litigation
advocate called fast-food
restaurants "weapons of mass destruction". ("Ralph Nader met
en garde les Français contre les 'fast food'", Yahoo/AFP, May
17; via Matt Welch, May
18; see comments
at Tim Blair blog, May 26). More on Nader's credibility or lack thereof:
Matt Welch, "Speaking Lies To Power", Reason, May;
Thomas Oliphant, Boston Globe, Apr.
21. (DURABLE LINK)
May 24-26 -- "Counseling
center may face closure". Chickasha, Okla.: "The largest
civil verdict in Grady County history may mean the county's largest mental
health center will have to close for financial reasons, officials said
Wednesday. A $1.5 million jury verdict awarded last week against
Chisholm Trail Counseling Service was a bittersweet victory for the family
of James Phillips, who committed suicide a few hours after being interviewed
and released by one of the agency's counselors." (Penny Owen, The
Oklahoman, May
23). (DURABLE LINK)
May 24-26 -- Australia's
litigation debate. "Some of Australia's most famous beaches
face closure after a huge damages award to a man paralysed while swimming
at Bondi Beach, local authorities have warned." (BBC, "Closure 'threat'
to Australia's beaches", May
14). Former chief justice of the High Court of Australia Harry
Gibbs "said the culture of litigation had been fostered by some lawyers,
while some judges seemed to strive to find a reason for finding in favour
of an injured plaintiff and award damages in cases where a reasonable and
informed person would not have thought the defendant was at fault. He said
the deficiencies of the law of negligence had now become apparent. 'It
favours generosity to the plaintiff at the expense (in many cases) of justice
to the defendant'." Gibbs suggested that Australia might want to
consider emulating the New Zealand model under which most negligence actions
are replaced with a system of no-fault compensation. ("Lawyers blamed
for crisis" (editorial), Queensland Courier-Mail, May
16). See Susanna Lobez, "Snails, Consumer Power and the Law",
ABC national radio transcripts, The Law Report, June
1, 1999)
"The latest figures available from the Australian Bureau of Statistics
show that as of June 30, 1999, there were 10,819 barrister and solicitor
practices in Australia, an increase of 11 per cent over three years, and
these practices generated an income of $7.04 billion, a robust 27 per cent
increase over three years. Income from personal injury cases grew still
faster, by 31 per cent." What strikes us as remarkable about these
figures is not just the rapid growth in sums redistributed, but that the
figures are obtainable at all. Virtually no data is available, reliable
or otherwise, on how much money American lawyers receive in the aggregate
from personal injury cases. Why not? If the answer that occurs
to you is "because our legal profession doesn't want it to be collected",
you may be on to something. (Paul Sheehan, "Laws made by lawyers
-- well they would like that, wouldn't they?", Sydney Morning Herald,
May
6). (DURABLE LINK)
May 22-23 -- Convicted
hospital rapist sues hospital. "A Sandusky man serving
a 10-year sentence for raping a patient at the former Providence Hospital
is suing both the hospital and his former attorney for negligence, according
to Erie County Common Pleas Court records. Edward Brewer filed suit
Monday against Providence Hospital, now part of Firelands Regional Medical
Center, for 'inadequate security in protecting visitors as well as their
patients' which caused him pain and suffering, according to court documents.
Brewer, 47, was found guilty in October of raping a 44-year-old acquaintance
in her hospital bed in June 1998. ... Brewer claims negligence by the hospital,
including a poorly trained nursing staff, negatively affected his criminal
case, according to the suit." The suit, which Brewer filed on his
own behalf, asks for $2 million in damages; separately, Brewer is suing
his former criminal attorney. (Emily S. Achenbaum, "Convicted rapist
sues hospital", Sandusky [Ohio] Register, May 21). Update:
court dismisses case, see Mar. 5-7, 2003.
(DURABLE LINK)
May 22-23 -- Reparations
suits "pure hooey". The "slave-reparation plaintiffs have
articulated neither standing nor a cognizable claim. In the final analysis,
these cases are not really about pushing the envelope and making new law.
Rather, they are part of a strategy to inflict public relations damage
in order to coerce political and economic concessions. The federal courts
should stand firm against this gathering storm, dismiss the lawsuits and
leave the complex issues of social policy they raise to the political process."
(Steven P. Benenson, "Reparations Suits Are Too Little, Too Late", National
Law Journal, May
20). "Any judge not assessing sanctions for the filing of frivolous
litigation should be ashamed. ... So much for laches, the statute of limitations
and all the other legal devices that assure that disputes are resolved
in a timely manner. No wonder the world laughs at our love of litigation."
(Norm Pattis, "The Color of Money: It's Red for Reparations", Connecticut
Law Tribune, Apr.
15).
"The villain Calvera said, 'Generosity, that was my first mistake,'
as he peered ominously from beneath his mega-sombrero at the gringo gunman
in the classic scene from the 1960 film The Magnificent Seven. ... Honchos
at Aetna Inc., the insurance company named in a recent lawsuit seeking
reparations
for slavery, must be remembering that quote right about now." (Gregory
Kane, "Generosity goes unnoticed in slavery reparations lawsuit", Baltimore
Sun,
Apr.
20). Kane says Aetna has responded to the suit with "infuriating
wussiness" and says "what Aetna bigwigs should tell [plaintiff-activist
Deadria] Farmer-Paellmann and her lawyers [is]: 'Get a life!'" (DURABLE
LINK)
May 22-23 -- PetsWarehouse.com
defamation suit, cont'd. Last year we reported on the
ongoing litigation filed by Robert Novak, founder and owner of PetsWarehouse.com,
against members of an internet discussion list that he said had defamed
him and his company (see Aug. 6, 2001;
letter to editor from Novak, Aug.
10). Many aquarium enthusiasts, alarmed by the legal action,
have at various times posted information on their sites about the suit,
sometimes posting banners that solicit donations on the defendants' behalf.
("$15,000,000 lawsuits suck the life out of online discussions. Please
support the APD Defense Fund," reads one.) According to Katharine
Mieszkowski, writing last month in Salon, a number of these site
operators have been given reason to regret that they ever took such rash
steps. In particular, according to Mieszkowski, Novak has proceeded
to add more defendants to the suit, including supporters of the APD Defense
Fund who put up its banner solicitations, and the webmaster of a site that
had posted information on the case, charging them with violating his PetsWarehouse
copyright and engaging in a conspiracy against him. Among evidence
of copyright infringement offered in his suit was webmasters' use of Pets
Warehouse as a "metatag", that is to say, a keyword directed at search
engines but not normally seen by ordinary users (more on metatag litigation:
Sept.
25, 1999).
A number of defendants have settled out of the case, including a Colorado
webmaster who says she spent thousands on her defense and who turned over
the rights to her domain to Novak as part of the settlement, having shut
it down after being sued. "Other defendants had to run banners on
their sites promoting Pets Warehouse." "According to [defendant Dan]
Resler, at one point, the money in the defense fund ran out, and when the
defendants had to start paying out of their own funds, they got scared.
(Novak is representing himself 'pro se' in the case.)" Resler himself
agreed to pay $4,150. "Beyond the lawsuit itself, other supporters
of the case say they have received cease-and-desist letters for using the
words 'Pets Warehouse' on their sites." Among them: the webmaster
of a site that "features a banner advertisement that mentions the case
with this headline: 'Pets Warehouse Sues Hobbyists' and links to the aquarists'
site about the case. 'I'm just literally reporting that the case
exists and linking to another site,' he says." (Katharine Mieszkowski,
"Free speech and the Internet; a fish story", Salon, Apr.
4). (DURABLE LINK)
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