| ARCHIVE -- JULY 1999
(II) |
July 30 -- Please
-- there are terminals present. The story got played mostly
as light human interest when it broke last month, but it counts as a fairly
noteworthy advance for the
Speech
Police. Bloomberg LP, which leases some 120,000 screens which
enable customers to keep tabs on the markets and also send each other email
messages, has quietly installed software that prevents users from employing
a long list of words deemed profane, obscene or racially insensitive.
If they try to send a message using one of the forbidden words, a pop-up
reprimand lectures them about how such language is "inappropriate in the
context of business correspondence." Bloomberg didn't notify its
customers it was planning to install the "protection", and says it won't
remove it even if they ask; nor does it matter whether any prospective
recipient of a particular email in fact objects to its improprieties.
There is, of course, no mystery about the legal system's role in all
this. According to the Wall Street Journal, company founder
Michael Bloomberg said the new policy was adopted "for fear that offensive
e-mails would lead to harassment lawsuits". (Pamela Druckerman, "Bloomberg
Demands Expletive Deleted", June 28) Bloomberg also suggested the
policy would apply to messages that were "anti-religion, that kind of stuff",
raising the question of whether clients are henceforth expected to refrain
from expressing
freethinking
opinions. The company's terminals account for a not trivial sector
of the email universe, handling an estimated 3 million messages on a busy
day.
Bloomberg himself compared the new step to the popular (and also, to
a large extent, harassment-law-driven) corporate practice of installing
"Net Nanny" screening software to prevent employees from browsing indecent
websites. In at least two crucial respects, however, it would seem
to go further: first because it so clearly shackles one-on-one personal
speech as distinct from access to media content, and second because most
of those whose speech it suppresses are not Bloomberg's own employees.
And yet both of these extensions are sadly consistent with the state of
contemporary harassment law, which has made clear from early on its aim
to impose a regime of censorship on ordinary conversation as well as the
circulation of published matter in the workplace, and which has more recently
moved to expand further the perimeters of the zone designated for censorship
by exposing businesses to potential liability if they fail to curb "customer-on-customer"
harassment.
Undoubtedly by coincidence, the hit television program South Park shortly
thereafter (July 11) aired what reviewer
Jon Osborne called "an amazingly frank attack on sexual harassment
laws and on frivolous lawsuits generally." It begins with the South
Park kids "getting a lecture in sexual harassment at school. They
soon figure out that sexual harassment is a legal bonanza and start suing
each other over minor insults. As the lawsuits mount, however, it
becomes clear that everyone is getting poorer except the town lawyer."
Kyle, one of the characters, has the following conversation with his lawyer
father:
Lawyer: "You see, son, we live in a liberal democratic society.
The Democrats created sexual-harassment law, which tells us what we can
and cannot say in the workplace, and what we can and cannot do in the workplace."
Kyle: "But isn't that fascism?"
Lawyer: "No, because we don't call it that."
July 29 -- Collusion:
it's an AG thing. Of the many outrages to proceed from
the tobacco litigation, one that's received surprisingly little press attention,
perhaps because none of the major players have an interest in calling attention
to it, is the role of the negotiated settlement in imposing a cartel structure
on the cigarette industry. It's the subject of a
revealing article by Rinat Fried that ran last month in The
Recorder, the California legal newspaper.
Start with a basic question: did the settlement impose a tax on the
tobacco companies' future sales, or assess damages for their past misconduct?
The state attorneys general unanimously insist that what they obtained
was a damage settlement rather than a tax, not surprisingly given that
1) they plainly lack authority to go about arranging the extralegislative
imposition of taxes on their states' populations; and 2) if the money being
raised were to be viewed as tax revenue by another name, rude questions
might be asked about whether they should have let private lawyers -- in
many instances personal chums, former law-firm cronies or major contributors
to their own campaigns -- rake off tens of billions of dollars as a commission
for having helped arrange the transaction.
One major difference between a damages settlement and a prospective
tax is that the former, by its nature, can be applied only to companies
that were doing business at the time of the claimed misconduct. If
a new company is organized to enter the cigarette trade, or a foreign maker
decides to tackle the U.S. market for the first time, it can't possibly
be subjected to a damage assessment based on the conduct of U.S. companies
in 1965 or 1980. Likewise, if what is at issue is a damages settlement,
an obscure local cigarette company that grows to big-time status would
owe only a level of payment based on its modest sales in the old days before
the AGs cracked down, not a higher sum based on its new market success.
But in fact the settlement contains a series of provisions whose effect
is specifically to curb any such entry by new competitors. Small
cigarette companies are permitted to participate in the settlement only
if they agree to keep their market share below 125 percent of its 1998
figure -- either that, or pay a prohibitive 35-cent-a-pack penalty for
every pack they sell above that level. And what if they, or new entrants,
don't like that deal? "The tobacco companies," writes Fried, "got
the states to agree to force small companies not participating in the settlement
to fund a 30-year, multimillion dollar escrow account to be used as insurance
against future health-related judgments against the small companies. Funding
the account at a rate of 35 cents per pack would make it impractical for
any small company not to sign the deal, the economists say." "The
economists" in this case are Paul Klemperer of Oxford and Jeremy
Bulow, formerly of Stanford and now chief
economist at the Federal Trade Commission, who have written an
analysis critical of the settlement's cartelizing effect.
Cigarette prices jumped by 45 cents almost as soon as the pact was announced,
a hike that might have been undercut had the entry of discount smoke-makers
into the market not been deterred by the anticompetitive clauses to which
the state AGs agreed. The irony is that had cigarette executives
met privately among themselves to raise prices by divvying up market shares
and penalizing defectors and new entrants, they could have been sent to
prison as antitrust violators. With the AGs doing it for them, the
same process becomes (most likely) perfectly legal -- what's known as the
Noerr-Pennington
doctrine immunizes otherwise anticompetitive practices when they take
place under color of government action or for purposes of obtaining such
action.
Were the AGs, mesmerized by the chance to stuff unearned billions into
their state treasuries and the pockets of their lawyer friends, simply
crashingly naive about the actual economic effects of what they were agreeing
to? Or would it be fairer to characterize them as having colluded
in a sweetheart deal with the same tobacco executives they were publicly
demonizing, in which everyone got something while smokers picked up the
bill? We don't have to decide right now, but the case for holding
up this group of officials as some sort of model of public service grows
weaker by the day.
July 28 -- Time
to rent a clue. Dana Blankenhorn at Clickz.com
recently wrote such
a good column about intellectual property law on
the Net that Overlawyered.com was momentarily tempted just to
swipe and use it whole in this space with due credit to him, until someone
warned us that we were being a little unclear on the concept. So
-- to content ourselves with paraphrase and fair use -- here's the gist.
Blankenhorn starts by telling about the legal catastrophe that descended
on a little Colorado company named
Clue Computing,
which was the first to register the domain clue.com. Along came the
giant Hasbro toy company
to assert that because it owned the famous board game Clue it therefore
had the right to Net dibs on this extremely old English word (earliest
citation given in the O.E.D.: the year 1393). With hot and
cold running lawyers at its command, Hasbro made things expensive
and difficult for the little company for a long time before finally
going away.
Blankenhorn had wanted to name his own e-newsletter www.clue.com,
settled in disappointment for www.a-clue.com,
and only
later realized what a hassle he'd escaped. Other examples he
lists, ranging from disputes over copycat graphics to the patentability
of business models, point toward the same lesson: getting into a good litigation
posture can count as very bad business, and sensible entrepreneurs will
do almost anything to avoid going to law even when (especially when?) they're
right. Sure, there may sometimes be no other choice, "if the
principle is worth dropping all your other business for" and you've resigned
yourself to the danger of looking foolish or losing on a fluke that goes
along with even the best case. "But lawsuits are war by other means.
Remember that lawyers can also negotiate."
One wonders whether anyone at McDonald's
Corp., a company that should know a thing or two about ill-considered
litigation, has thought these questions through. On July 9 the
Wall Street Journal reported (coverage by Richard Gibson; online
subscription required) that McDonald's has sued rival Burger
King in U.S. District Court in Detroit over Burger King's introduction
of a "Big Kids' Meal" at its stores nationwide. The U.S. Patent and
Trademark Office has in fact ruled that "Big Kids' Meal" is a generic term,
a ruling McDonald's says it plans to appeal; nor can it claim to have used
the term for any major national product line of its own, pointing only
to a three-week promotion in parts of Michigan last year where it employed
the phrase. It nonetheless asks that Burger King's national advertising
be enjoined and demands treble damages. Such treble-damage entitlements,
kerosene on the fire of needless business litigation, have been vocally
defended by today's litigation lobby, which also opposes the loser-pays
principles by which other countries keep a lid on this sort of thing.
July 27 -- Razor
wire on the pool fence. It seemed like such
a nice idea to keep a backyard swimming pool, the only one in her New Orleans
neighborhood. All the local kids came by wanting to use it; some
would prettily ask permission, while others would sneak in. Then
novelist Patty Friedmann began learning more about terms like "attractive
nuisance" and the many ways lawyers can go after property owners if kids
sprain their ankles, develop bacterial infections, break a bone or worse,
whether they had permission to be on the property or not. She tried
being a saint; she tried being a meanie; and finally there was nothing
left to do but put in the order for razor wire....("My Turn", Newsweek,
July 26; link now dead).
July 27 -- Improvements
to the Overlawyered.com site. Our
newest topical subpages, introduced during the past week, cover class
actions and litigation vs. good medicine.
That brings the number of topical pages to five, with more coming soon.
(Others: firearms litigation, product
liability,
lawyers' advertising and
solicitation). Check these pages often if they interest you,
since new resources keep being added without notice to each page.
Also new today is our acknowledgments
page in which we thank some of the kind folks out there who've sent
leads or otherwise helped draw our attention to cases, articles and resources
suitable for Overlawyered.com coverage. The list will grow
as we continue to work through the not unimpressive backlog of leads already
on hand. Your name belongs on the list as well; to help make that
happen, take a moment to send us a lead,
or two or three.
July 26 --
Mow' better ADA claims. The July 22 Milwaukee
Journal-Sentinel reports that Susan Bauer has gone to federal court
to challenge her village's insistence that she mow her lawn. The
Dane County town of DeForest had ticketed Bauer and sent her a notice that
if she did not cut her weedy lot the town would order it done for her and
send her the bill. Bauer proceeded to sue village trustee Laura Crowell
and seven other officials under the Americans
with Disabilities Act, saying she suffered chronic back problems for
which the town is obliged to allow a disability exception in its weed ordinance.
The issue of Bauer's unkempt lawn has been building for
two years, town officials say. Earlier, Bauer sued in state court,
claiming that mowing her property would endanger
exotic prairie plants, but lost when an unsympathetic court deemed the
front-yard flora to consist of common and noxious varieties. "Those
are thistles and other weeds growing there. She tried and failed in one
attempt against the village, and now she's trying something else," Crowell
said, adding that while she did not know the condition of Bauer's back,
nothing prevented her from hiring someone else to do the mowing.
Bauer is representing herself without an attorney, and the federal court
waived filing fees for her action.
July 26 -- "Destroy
privacy expectations: lawyer." That's the
headline over the coverage in Business Insurance of one lawyer's
advice to participants at the annual Society for Human Resource Management
conference last month in Atlanta (July 12 issue; free archives include
latest two issues; search on "employee privacy" or another relevant term).
Jonathan Segal of Philadelphia's Wolf, Block, Schorr & Solis-Cohen
explained that current law makes it dangerous for employers "to create
an expectation of privacy, however well-intended" among workers.
So instead "you want to destroy privacy expectations" by explicitly telling
staff that their work space, on-site belongings, computer
hard
drives, voice- and email are subject to search. At the same time,
managers should studiously avoid learning about things that may be going
on in their employees' personal lives: "It's in your self-interest
as an employer not to know private facts about employees," Segal observed.
The folks who brought us modern employment law kept assuring
us that the higher we raised the litigation hazards to which employers
were exposed, the warmer and more empathetic the workplace would become.
It doesn't seem to have worked yet. (fee-based
archives)
July 24-25 -- Arbitrary
confiscation, from Pskov to Pascagoula.
"American commentators on Russia almost unanimously agree that it needs
to strengthen the rule of law," writes Michael Barone in the June 28 U.S.
News and World Report. "By that they mean that the law should be predictable,
contracts enforceable, property safe from confiscation or arbitrary transfer."
Yet in this country, "trial lawyers who have been targeting
major industries have been transferring vast wealth from major corporations
to themselves" after inventing a series of strained, ex post facto
theories. Now "it is clear that the tobacco cases will produce several
dozen trial lawyers with the net worth -- and potential political leverage
-- of Ross Perot or Steve Forbes. The difference is that unlike most entrepreneurs
and heirs who hold other great fortunes, trial lawyers typically have the
skills and political connections to become powers in their own right instantly".
"Trial lawyers seeking transfers of corporate wealth need
political protection just like Russia's oligarchs. Texas's 'big five' tobacco
lawyers contributed $1.1 million to the Democratic Party. The leader of
a tobacco class-action group brought in -- with a $30 million potential
fee -- Hugh Rodham, a lawyer with no relevant experience but with the run
of the White House as Hillary Rodham Clinton's brother."
"Americans urge Russians to move toward the rule of law.
Why are we moving the other way?" (Full
article)
July 23 -- Suspicions
of jury fallibility. The trial of
Walter Huston in New Orleans this spring on charges of murder boiled down
to a conflict in eyewitness testimony between a 14-year-old girl and a
13-year-old boy. Joan Canny, a management-side labor lawyer with
McGlinchey Stafford PLLC, was surprised to find herself picked as a juror,
and even more surprised to find that, despite what she saw as her own pro-police
leanings, the testimony left her convinced the prosecution's case was flimsy.
The jury retired to discuss the case, and, reports
Michael Goldhaber in the July 19 National Law Journal, "Ms.
Canny found the deliberations disturbing. As she tells it, the foreman
argued against believing the boy because he knew and distrusted the boy's
father. Another woman voted for conviction because 'God told her to,' even
though she conceded it was contrary to the evidence. A third summarily
changed his mind without explaining why. A fourth argued for a compromise
verdict of manslaughter, even though no theory of the case supported it."
The proceedings ended in a hung jury, with a dramatic sequel: Canny volunteered
pro
bono to help the defense lawyer secure an acquittal at retrial, which
she did by successfully demonstrating the teenage girl's recollection of
the killing to be inconsistent and unreliable.
Stephen Adler's 1994 book The Jury (available
on Bibliofind), reviewed
by Overlawyered.com's editor in Reason at the time, is
a classic account of the disillusionment of a reporter who initially bought
into the conventional wisdom about how juries seldom get important matters
wrong, and then took a close look at a series of real-life cases to find
that many jurors were hopelessly confused about the issues, or regularly
nodded off during the arguments, or "daydreamed about home or rated the
witnesses and lawyers on their looks and demeanor." All such heretical
observations are instantly condemned as "anti-jury" by today's bar establishment,
but the actual lesson they hold is that it's unwise to rely on jury rationality
as the only line of defense against miscarriages of justice; strong defenses
of other sorts against unwarranted court action are needed too.
July 22 -- Censorship
via (novel) lawsuit. The newly launched
courtroom assault on entertainment companies over their customers' violent
acts parallels the legal mugging of tobacco and gun makers in many respects,
notably advocates' concern to have it be known that they're not really
trying to make up new liability law as they go along. Thus the New
York Times, cheerleading the anti-gunmaker suits in an editorial
this past Saturday, July 17, saw fit to deny that they were "based on exotic
legal theories" and said that "in fact, these suits have applied traditional
negligence standards", a view not shared by many others (react).
Likewise attorney Jack Thompson, who in April announced a suit against
Nintendo, Time Warner and a long list of other videogame, movie and Internet-site
purveyors on behalf of families victimized by Paducah, Ky. school shooter
Michael Carneal, told Christianity Today (June 14) that "We have
simply taken time-honored, adjudicated, reasonable-standard tort theory
and applied it to these three categories of products." (react).
This Monday (July 19), however, federal judge Edward Johnstone
ruled that the Hollywood-made-him-do-it theory of the Paducah suit faced
squarely opposed on-point precedent and asked Thompson to explain why that
precedent was inapplicable or should now be overturned. Similarly,
the July
19 National Law Journal, hardly suspected of sympathy for gun
makers, describes federal judge Jack Weinstein, who presided over the much-publicized
Hamilton
v. Accu-Tek, as a "maverick" known for "unconventional rulings that
often push the limits of tort law" and who's been sought out by forum-shopping
plaintiffs who think they can sell him on "novel theories of industry-wide
liability that might not succeed in any other courtroom in America".
When lawyers on the attack take pains to label their theories as "time-honored,
adjudicated" or "traditional", it would seem, their use of these terms
must often be understood in a Pickwickian sense.
In an earlier action filed in state court, the Paducah
families' lawyers sued more than 30 local students, teachers and other
defendants they blamed for not preventing Carneal's rampage. A judge later
ruled that two dozen of these had clearly been named inappropriately (Nando
Times; link now dead); one, a teacher named Frank DuPerrieu, turned
out not even to have been employed at Carneal's school, according to the
May 11 Louisville
Courier-Journal. (Attorney Mike Breen sought
to blame school administrators for the mix-up, saying they hadn't cooperated
with his demands to know who the boy's teachers had been.)
Plaintiff's attorneys Thompson and Breen have been making
the rounds of the conservative media to talk up their case against the
entertainment companies, and have gotten lengthy, uncritical coverage in
Insight
(June 28); the American Spectator (Dave Shiflett, "The Children
Strike Back", July; react);
and from the pro-censorship Family
Research Council. "We intend to hurt Hollywood," Thompson proclaimed
at his April news conference. "We intend to hurt the video game industry.
We intend to hurt the sex porn sites". (ABC
News; Lexington
Herald-Leader;
Wired.com.)
But other conservatives, like those at the Boston
Herald, prefer to stick with a principled opposition to the use of
novel lawsuits for purposes of social engineering. On Salon
July 19, conservative commentator David Horowitz spoke
out: "the book burners are on the march....In the past, Republicans
defended the principle that legal industries should not be destroyed by
government lawsuits...unfortunately, the puritan impulse to censor and
control others seems to be a bipartisan disease."
[Update April 13,
2000: judge dismisses Thompson's suit; appeal vowed. See also
Nov.
2]
July 21 -- Yes,
this drug is missed. In discussions of Bendectin,
the pregnancy-sickness drug driven from the market by scientifically speculative
lawsuits though the FDA and other health authorities found it safe and
effective, defenders of the litigation system sometimes advance the view
that the drug was of at most marginal medical
benefit anyway. But Atul Gawande's feature article in the July 5
New
Yorker ("A Queasy Feeling: Why Can't We Cure Nausea?") suggests they're
off base.
"Prior to the Second World War and the development of
modern techniques for replacing fluids, hyperemesis
[extreme nausea and vomiting in expectant mothers] was routinely fatal
unless the pregnancy was aborted," Gawande writes. "Even today, although
death is rare, serious complications from the severe vomiting can occur
-- including rupture of the esophagus, lung collapse, and tearing of the
spleen....
"Back when doctors didn't hesitate to prescribe antiemetics
for ordinary pregnancy sickness -- at least a third of pregnant women were
on such drugs in the nineteen-sixties and seventies -- hyperemesis was
much less common." When ordinary cases are noticed and medicated
early, they are less likely to progress to the severe stage. Then
lawsuits "forced the popular remedy Bendectin off the market (despite numerous
studies showing no evidence of harm). It became standard to avoid
prescribing drugs until, as in [Amy] Fitzpatrick's case [the 29-year-old
mother profiled in the article], vomiting had already caused significant
dehydration or starvation. Hospital admissions for hyperemesis of
pregnancy subsequently tripled."
For those wishing to defy the will of the U.S. litigation
system, a nurse explains how
to make your own bootleg version of Bendectin. The same compound
is still sold in
Canada under the name Diclectin, and some American women drive up to
Toronto to get it (check out Lisa L.'s 5/23
entry on this BabyCenter.com bulletin board). Otherwise, as you
throw up, think thoughts of lawyers.
July 21 -- Hey,
nice Jag the chief's driving. Under current
forfeiture laws, police and prosecutors can seize property they deem linked
to criminal activity even if its owners are themselves accused of no crime.
That includes family cars, seized when errant husbands are collared for
DWI or as streetwalker johns; cash, seized because its holders have more
of it on hand than their jobs seem to make plausible; homes, guns, jewelry,
motels and even farm animals. Hapless owners can't assert a presumption
of innocence or other usual protections, and since authorities get to keep
seized goods they're tempted to resolve hard calls against leniency. Reason
magazine takes a critical look at the subject in the latest installment
of its online "Breaking Issues" series, unveiled
Monday. Earlier entries in the link-rich series have tackled
such issues as gun suits,
the breast implant fiasco
and disabled-rights law.
July 20 -- Guns,
tobacco, and others to come. What kind of
trial is this, asks Peter Huber in the June Commentary, where
political officials step forward to announce selective, discretionary legal
action against some small group that's been made deeply unpopular by a
recent campaign of abuse in the press; where the rules of law are invented
and applied retroactively to punish formerly lawful behavior; where the
point is not to determine who did what but to proclaim society's resolve
to prevail over its internal enemies; where "right-thinking people know
what the verdict ought to be before the proceeding even begins"; where
"a mountain of fact and detail is presented merely as scenery and decoration";
and where "the little facts do not matter because we are meant to appreciate
the gravity of the big facts, to understand society’s larger priorities,
to be loyal to a higher principle, to be dedicated to a greater cause?
"It is a show trial."
Huber is not optimistic about what lies ahead. "Each
one of a dozen or more tobacco lawyers will soon collect more money than
Bill Clinton has spent on all his political campaigns combined. Inevitably,
some healthy share of the take will get channeled back to candidates...who
are committed to expanding the mega-tort still further."
The new mega-tort cases "cannot escape being essentially
political," Huber writes. "Yes, legislatures in the past have struck
messy, imperfect compromises on guns and tobacco. But to tar those outcomes
as a failure of representative government is to reject the political system
itself." (full
article)
July 20 -- Improvements
to the Overlawyered.com site. Debuting
today is the Overlawyered.com/Amazon bookstore,
the first attempt we know of to assemble a wide selection of books of interest
to legal reformers along with annotations and links to reviews and related
articles. Topics range from junk science to family law, legal philosophy
to harassment law; featured authors include Peter Huber, Richard Epstein,
Mary Ann Glendon, James Q. Wilson, Daphne Patai and many more. Proceeds
help support
Overlawyered.com and other legal reform and research
causes.
Topical pages now number three with a recently added page
on lawyers' advertising and solicitation
joining those on gun litigation and product
liability, and more to follow soon.
We're pleased to announce that Overlawyered.com
is a featured recommendation today (link now dead) on FrontPage,
the lively Internet magazine published by David Horowitz's Center for the
Study of Popular Culture.
July 19 -- Overlawyered
skies not always safer. Safety experts say
one reason airlines hold back from adopting
data-collection programs that could save lives is that they fear the results
will be used against them in later litigation, reports Matthew L.Wald in
yesterday's
New York Times. Flight Operational Quality Assurance ("FOQA")
programs record and assemble large quantities of information from routine
flights to help identify patterns that might signal future trouble.
For example, Scandinavian Airline System analyzed FOQA data and discovered
that many of its pilots were flying a new model of turboprop plane too
fast, which allowed it to institute corrective steps before any mishaps
occurred. More than 25 airlines outside the United States have successfully
implemented FOQA programs (FAA draft advisory circular, link now dead)
but the practice has been slow to catch on in this country.
According to the Alexandria, Va.-based Flight
Safety Foundation, which has vigorously supported the FOQA concept,
reasons for hesitation have included both flight crews' fear that the data
will be used in employee discipline or licensing action and airlines' fear
that the data will be used against them in civil litigation or prosecution
(some worry that last week's filing of criminal charges against a maintenance
company in the Valujet case will portend more such prosecutions).
The FSF's Flight Safety Digest for July-September
1998, available as a PDF document (Adobe Acrobat needed to view; get
it here) explores the issue in depth, and points out that flight data
is likely to find its way into adversarial hands through Freedom of Information
Act (FOIA) requests as well as the discovery process in civil litigation.
The issue keeps cropping up in many safety areas: unless
some means is afforded by which regulated parties can conduct "self-critical
analysis" without seeing the results seized on to prove their fault in
later proceedings, they will flinch from pursuing such analyses wherever
they may lead. But although some states have moved to enact protections
for environmental audits
or product
safety remedial analysis, the American legal system generally remains
quite hostile toward them. In February a Massachusetts trial court
declared, in a liability case arising from basketball player Reggie Lewis's
fatal heart attack, that such immunities are "not...favored"
in the Commonwealth. The federal Environmental Protection Agency
has expressed the opinion that state environmental laws providing a self-audit
privilege, such as Colorado's (link now dead), may conflict with federal
law.
July 17-18 -- "Dune"
as we say. Many historic structures on Nantucket
have their front doors up a few steps, which brought their owners to predictable
grief last November when federal law enforcers announced a crackdown on
inns, restaurants, pharmacies and other businesses on the quaint island
whose owners had not brought them into full compliance with the Americans
with Disabilities Act. Assistant U.S. Attorney John A. Capin denied
an intent "to run 'Mom and Pop' enterprises out of business" but said "[w]e
want to work with the owners in order to educate them about their obligations".
If the owners fail to absorb this education at the indicated pace, of course,
they risk being hauled to court.
If that happens, however, they’ll be summoned to a newly
built federal courthouse in downtown Boston that has been been hit with
a long series of complaints "for allegedly violating federal standards
on handicapped accessibility", as the Boston Globe reported April
19; for example, the jury boxes and witness stands in its 27 courtrooms
can be reached only by way of steps. "We looked at the possibility
of building in permanent ramps that were retractable but it was such a
burden on the budget we just couldn't do it," said General Services Administration
project manager Paul Curley, though the courthouse does sport double-story
English oak paneling, a 45,000-square-foot glass wall overlooking the harbor,
“spacious waterfront chambers for judges, and a five-story Great Hall”.
One wonders whether Nantucket’s bait-and-tackle shops will be allowed to
cop a similar plea of expense.
July 16 -- From
the Fourth Branch, an ultimatum. "The next
great issue will be managed health care, said Mr. [Russ] Herman [former
president of the Association of Trial Lawyers of America], whose New Orleans
law firm has contributed $6 million in time and resources to the tobacco
litigation with Mr. Gauthier.
"'This Congress has an opportunity to do something about
it,' Mr. Herman said, 'but if they don't act, my guess is that in five
years you will see a massive lawsuit brought to destroy and dismember managed
care as it currently operates.'" -- quoted in "Tobacco-Busting Lawyers
On New Gold-Dusted Trails" by Patrick E. Tyler, New York Times, March 10,
1999.
A more recent report, by Michael D. Goldhaber in the June
28 National Law Journal ("Class Action Blues, New Orleans Style"),
suggests that the duly elected legislative branch of the U.S. government
may not have moved with sufficient alacrity to accept the terms Mr. Herman
has dictated. "We're going to dismantle the managed care system,"
it quotes him as saying.
