Overlawyered: Chronicling The High Cost Of Our Legal System

“Judge rules paper money unfair to blind”

New frontiers in disabled rights: “A federal judge has ruled that the U.S. Treasury Department is violating the law by failing to design and issue currency that is readily distinguishable to blind and visually impaired people. Judge James Robertson, in a ruling on a suit by the American Council of the Blind, ordered the Treasury to devise a method to tell bills apart.” The court acted on the basis of the Rehabilitation Act, which guarantees to the disabled “meaningful access” to federal programs. (CNN Money, Nov. 28; decision in American Council of the Blind v. Paulson courtesy FindLaw; decision in PDF form at court website).

More: Here’s an interesting development: the National Federation of the Blind, the best known organization for blind Americans, has issued a press release sharply critical of the lawsuit and the ruling (“dangerously misguided”) (Yahoo/PRNewswire, Nov. 29). According to Dr. Marc Maurer, President of the National Federation of the Blind, “The blind need jobs and real opportunities to earn money, not feel-good gimmicks that misinform the public about our capabilities. Blind people transact business with paper money every day. … [The ruling] argues that the blind cannot handle currency or documents in the workplace and that virtually everything must be modified for the use of the blind. An employer who believes that every piece of printed material in the workplace must be specially designed so that the blind can read it will have a strong incentive not to hire a blind person.” More from the NFB press release:

Blind people traditionally identify paper currency by folding bills of different denominations in different ways. “In reality, blind people do not routinely find that we have been short-changed,” Maurer commented. Machines are readily available to identify paper money for blind people who run businesses or handle large amounts of cash. “Essentially, the United States Treasury has been ordered by the courts to come up with a solution for a nonexistent problem,” Maurer said.

Per the AP, “Government attorneys argued that forcing the Treasury Department to change the size or texture of the bills would make it harder to prevent counterfeiting,” but Judge Robertson was not swayed (“Judge Says Currency Shortchanges the Blind”, AP/Washington Post, Nov. 29). See also Dvorak Uncensored and Orin Kerr.

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A thought on “hypocrisy” accusations

As a matter of federal tax policy, I oppose permitting deductions for state taxes. I would rather see lower federal rates across the board, and let the full impact of state taxes rest on the residents of the states that have high taxes, rather than have the entire nation subsidize a quarter or more of the tremendous tax rates paid by New Yorkers and Californians, thus reducing the pain of higher state taxes and allowing local politicians to escape the political consequences of profligate spending (not to mention preventing tax-cutting state politicians from realizing the full benefit of their policy).

But come April, I promise you that on my 1040 Schedule A, I’m going to deduct the thousands of dollars of state income tax I paid and collect the resulting refund. Does this make me a hypocrite? Of course not: it just means that I’m not an idiot.

I’m not arguing that people shouldn’t take deductions that are available to them; I’m arguing that the deduction shouldn’t exist. Self-flagellation on my taxes doesn’t make me any purer or my policy arguments any more correct, it just means that I suffer all the costs of a tax policy I oppose without realizing any of the benefits.

Cyrus Dugger, however, makes precisely this mistake when he criticizes a reformer for being a plaintiff in a lawsuit as a “hypocrite.” (Or, more accurately, thoughtlessly parrots the West Virginia Trial Lawyers Association’s accusation of hypocrisy.) That one argues that the law should be changed for the good of society doesn’t at all require that one refuse to take advantage of a bad law. There’s no requirement that reformers who find themselves in the situation of being plaintiffs abstain from receiving legally available non-economic damages. Reformers aren’t arguing that individuals are bad people for seeking non-economic damages, but, rather, the legal system’s award of unlimited non-economic damages is bad public policy. (For that matter, it’s far from clear that Stephen Roberts is even seeking non-economic damages above and beyond the cap he proposes—I have seen no one make that accusation.)

Similarly, Senator Trent Lott, an occasional reform supporter, sued his insurance company over Hurricane Katrina damage, seeking to rewrite the terms of the insurance contract that he agreed to, and using his power as a Senator to threaten the industry as a whole because State Farm refused to give him special treatment. However, the only thing Dugger can think to find wrong with Lott is “hypocrisy.” It strikes me that hypocrisy is the least of Lott’s sins compared to bringing an illegitimate lawsuit and abusing his authority as a Senator to punish the nation’s economy in order to seek personal gain for himself and his trial-attorney brother-in-law.

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Tarheel heartbalm, cont’d

Newsweek looks at North Carolina’s cottage industry of tort actions by wronged spouses against the cads, hussies and assorted homebreakers who put an end to their domestic felicity (see May 22, 2005, Nov. 16, 2004, and May 18-21, 2000). “Although alienation of affection is rarely invoked in most states, a series of high-profile judgments in North Carolina, including one in 2001 for $2 million, have inspired more than 200 suits annually in recent years. Lawyers say people typically file these claims as leverage in divorce and custody disputes. ‘A wife says I’m going to sue your girlfriend if you don’t give me $50,000 more in property settlement. That’s an improper use of the [law], and it shouldn’t take place,’ says A. Doyle Early Jr., former chair of the North Carolina Bar Association’s family law section. … Conservative [i.e., Religious Right] groups like the North Carolina Family Policy Council say the law should stay on the books”. (Julie Scelfo, “Heartbreak’s revenge”, Dec. 4).

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“Jay-Z versus the Sample Troll”

“Similar to its cousins the patent trolls, [Bridgeport Music Inc.] and companies like it hold portfolios of old rights (sometimes accumulated in dubious fashion) and use lawsuits to extort money from successful music artists for routine sampling, no matter how minimal or unnoticeable. … Since 2001, Bridgeport’s shotgun approach has led to many dismissals and settlements, but also two major victories. … there’s only one appellate court, the 6th Circuit, that takes the ridiculous position that any sample, no matter how minimal, needs a license.” (Tim Wu (Columbia lawprof), Slate, Nov. 16). Frank Pasquale at Concurring Opinions has some further thoughts: Nov. 21. More on sampling litigation in Ted’s “Overlawyered iMix” post, Aug. 9, 2005, and comments.

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November 27 roundup

  • In the Supreme Court November 29: Watters v. Wachovia. Also an AEI panel November 28, broadcast on C-SPAN1, 2pm to 4pm Eastern. [Point of Law; AEI; Zywicki @ Volokh]
  • Also in the Supreme Court November 29: Massachusetts v. EPA global warming regulation case. Previously an AEI panel November 21. [Adler @ Volokh; AEI; C-SPAN (Real Media)]
  • Legal cliche: If the facts are against you, pound the law; if the law is against you, pound the facts; if both are against you, pound the table. Table-pounding class of Gerry Spence protegee offers lessons in emotionally creating jury sympathy worth millions. [LATimes]
  • What judicial activism?, Part 7356: Indiana state court judge holds “Protection of Lawful Commerce in Arms Act” unconstitutional, complains gun industry supported the law. [Indianapolis Star via Bashman; Indiana Law Blog]
  • Entertaining doctor victory in medmal case. [Musings of a Dinosaur via Kevin MD]
  • Dahlia Lithwick gets something right; if only it was on an issue more important than a suit advertisement. [Slate]
  • Leftover from Thanksgiving: lawyers acting like turkeys. [Ambrogi]
  • Ninth Circuit grants potential standing to monkeys over Kozinski dissent. Earlier: Oct. 21, 2004. [Bashman roundup of links]
  • Gloria Allred joins the Borat pile-on. [LATimes]
  • Speaking of, here’s the future case of Allred v. Kramer. More Allred: Oct. 16. [Evanier]
  • Speaking of Allred nostalgia, and of primates, whatever happened to chimpanzee victim St. James Davis? (Mar. 17, 2005; Mar. 8, 2005) [Inside Edition; “The Original Musings”; CNN Pipeline ($)]
  • More Allred nostalgia: is Veronica Mars‘ Francis Capra the next Hunter Tylo? Discuss. [Prettier than Napoleon]

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Woman hits truck, sues truck-trailer manufacturer, wins millions

Virginia Walker drove her Ford Taurus into the side of an 18-wheeler that had pulled in front of them on Highway 59, killing herself and severely injuring her front-seat passenger, Kelleigh Falcon. It’s not clear which driver was at fault, but the resulting trial brought by Walker’s relatives and Falcon focused on the deep pocket, Lufkin Industries, who dared to manufacture a truck trailer that complied with federal safety regulations. No matter: Lufkin should have anticipated that this particular truck would need sideguards that would protect the occupants of a Ford Taurus that hit it, though such sideguards would potentially make the truck geometrically mismatch and be more dangerous to still other vehicles on the road. (Press coverage does not indicate how fast the Taurus was travelling, and whether improved underride standards would actually have protected it.) Among the evidence introduced against Lufkin: they were a member of the Truck-Trailers Manufacturers Association, which, among other things, dared to speak with legislators about the financial impacts of proposed regulations; Lufkin waited until federal regulations specified underride protection standards before installing such protection, rather than taking its own initiative and discovering that the regulations asked for something else. A Texas state jury found them about 40% liable for $38.5 million in damages; press coverage doesn’t indicate who the other 60% applies to. (Jessica Savage, “Lufkin Industries plans to appeal jury’s decision in tractor-trailer accident case”, Lufkin Daily News, Nov. 21; Ramonica Jones, “Lufkin Industries Plans to Appeal $36 Million Verdict”, KTRE-TV, Nov. 22).

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Learning to accept coconuts

From a New York Times article on the city of Los Angeles’s decision to curtail the planting of palm trees along public streets and parks, one reason being that the majestic plants have been known to drop bulky fronds on persons below:

“Hawaii has a lot of coconut tree liability problems because they fall on people’s heads,” he said. “But the people there have said, ‘That is something that we have to accept.’”

(Jennifer Steinhauer, “City Says Its Urban Jungle Has Little Room for Palms”, Nov. 26). See also Jun. 11 (similar, from Torquay, England). More on coconut liability, in both cases relating to the decorated Mardi Gras variety: Mar. 4, 2005 (thrown at parade spectators); Mar. 13-14, 2002 (copyright claim).

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Matrimonial data mining

Contemplating a splitup? Grab the family hard drive and get it into your lawyer’s hands ASAP. Such a stratagem “can be best explained to the client as an important first glimpse into the overall actions and conduct of the adverse party in the litigation”. (Scott Andino, “Digging Deeply Into Matrimonial Data Mining”, The Matrimonial Strategist/Law.com, Nov. 10).

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Oz: but where are the clients’ bonuses?

Updating the Oct. 3 item from Australia: “Law firm Slater & Gordon was within its rights to pay a senior partner $1 million from the profits of a breast implant class action without informing clients, according to the Law Institute of Victoria. The bonus, which came to light this week, means senior partner Peter Gordon received at least eight times more from the class action than any one of the firm’s 3100 clients. Their payouts ranged from a few hundred dollars up to $120,000. However, law institute head Michael Brett Young said yesterday there had been no need to inform the women about the payment to Mr Gordon because the settlement in the action had been authorised by a judge.” (Chris Merritt and Tracy Ong, “Law firm ‘in rights’ on payout”, The Australian, Sept. 16). For allegations that the $1 million was improperly paid to Mr. Slater although earmarked as “post-settlement expenses”, see the Oct. 3 post.

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