Overlawyered: Chronicling The High Cost Of Our Legal System

“Express Yourself” — But Not in Duesseldorf

One of the points that I often emphasize at my own blog is that there simply is no First Amendment in Europe.

Just ask Madonna:

Prosecutors plan to keep an eye on Madonna’s weekend concert in Duesseldorf to see if the pop diva repeats the mock crucifixion scene that has drawn fire from religious leaders.

Johannes Mocken, a spokesman for prosecutors in Duesseldorf, said Tuesday that a repeat of that scene during Sunday’s concert could be construed as insulting religious beliefs.
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Mocken said authorities would rely on media reports rather than sending observers to the concert and that the show might be covered by laws protecting artistic freedoms.

Read that again: “might be covered.” So not only is there no blanket freedom of expression, but what partial protections do exist are so vague that even the prosecutors don’t know how they apply to whom under what circumstances.

Read On…

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Circuit Court Upholds Worthless Subway Searches

As I mentioned in my introductory post, I have a soft spot for the Fourth Amendment. Unfortunately, it seems that judges, up to and including the Supreme Court, have made it a hobby to poke ever more holes into the Amendment’s proscription against warrantless, suspicionless searches, purportedly in the name of “reasonableness.”

Most of the evisceration of the Fourth Amendment has been proximately caused by the War on Drugs, particularly regarding the ever-increasing “automobile exception” to the warrant requirement. But we also have a whole panoply of other exceptions: border searches, administrative searches, consent searches, health & safety inspections, exigent circumstances…

…oh, and the War on Terror:

A federal appeals court Friday upheld the constitutionality of the city’s random police inspections of subway riders’ bags.

The 2nd U.S. Circuit Court of Appeals rejected a challenge by the New York Civil Liberties Union, which argued that searches were ineffective and an unprecedented intrusion into privacy.

The appeals court ruled that a lower court judge properly concluded the program put in place in July 2005 after the deadly London subway bombings was a reasonably effective deterrent and that the intrusion on riders’ privacy was minimal.

If you’ve never ridden the New York City subway*, then it might be difficult for you to appreciate just how wrong that last sentence is. The search program has, literally, zero deterrent effect. None.

Read On…

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Indians Sue, Yet Again, to Ban “Redskins” Name

The only thing worse than a frivolous lawsuit is a frivolous repeat of a frivolous lawsuit:

A group of Native Americans filed a new legal challenge yesterday to trademarks for the name and logo of the Washington Redskins, saying the team’s name is a racial slur that should be changed.

A petition filed at the U.S. Patent and Trademark Office by six Native Americans represents a second chance for Indians to challenge the football franchise’s name. The team prevailed in an earlier fight when a U.S. District Court judge ruled that the plaintiffs waited too long under trademark law to object. This time, the complaint was filed with a new set of plaintiffs.
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“The term ‘redskin’ was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for a Native American person,” the complaint says.

Whatever thesaurus the plaintiffs are using, I want one. I’m surprised the complaint didn’t add “just plain icky.”

Read On…

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Guestblogger thanks, welcome, etc.

Our thanks to Peter Morin, who’s been pitching in as guestblogger over the last week to supplement Ted’s efforts. Peter’s writing can be found at his blog Wave Maker. And welcome to Chris Tozzo of KipEsquire, who joins today in the same role. I’ll be posting occasionally, but probably less often than usual.

Also, over at Point of Law, check out the contributions of guestbloggers Gail Heriot (San Diego lawprof associated with The Right Coast) and Al Adomite (Illinois Civil Justice League). In particular, Gail’s post on the contrasting liability treatment accorded to “doers” and “talkers” deserves a wide audience.

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Town Shuts Down “Nightcrawler Kid”

Sometimes the problem isn’t that we are “overlawyered” but rather that we are “overregulated” —

Cromwell [Connecticut] can be a hostile environment for those looking to break into night crawler vending — particularly if they advertise with a yard sign.

A worm business that Joe [Cadieux] has operated since he was 10 was shut down two weeks ago when Cromwell’s planning and zoning commission issued a cease-and-desist order because the teenager’s sign violated local zoning regulations.

“It’s ridiculous,” said the middle school student, who made $5 to $10 a month selling worms collected from his front yard, where they are plentiful after spring rainstorms.

So on the one hand we have a disgraceful new federal law guaranteeing a homeowner’s “right” to display an American flag on his property, despite any pre-existing homeowner association rules to the contrary (i.e., abridging the ability of private parties to enter into private contracts — which is what homeowner associations are), yet we cannot seem to find a right for a kid to do what kids do in their front yards.

Lovely.

Would the quality of life of Cromwell plunge precipitously if a “de minimis” exception were crafted for small signs by minors on their own property? Are the local politicians of Cromwell so busy with the rest of their packed agenda that they can’t revise the guidelines of their planning and zoning commission so that its members stop being worms petty jerks?

And can someone explain to me why judges are supposed to “defer” to politicians and bureaucrats like these?

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“Pet Cemetery” Photo Lawsuit is a Real Horror Story

Let’s start my guest-blogging with a softball, lobbed right here in my own backyard of New York City:

A woman has filed a lawsuit against a pet cremation service and a photo agency, claiming they used a photo of her posing with her dogs, Chickie and Tiny, without her permission.
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Cecala, whose lawsuit seeks $3 million, said she never gave permission to have the photo used for “something of such a morbid nature[.]”

Where to begin?

Read On…

Introducing Myself

Hello everyone. Apparently Walter is leaving it to me to introduce myself as I commence my guest blogging here.

My name is Christopher Tozzo, and I am part of that ever-growing caste, the non-practicing attorney. I work in the investment bank of a very large global financial services firm, as a Supervisory Analyst — which is odd, considering that I’m neither a supervisor nor an analyst (it’s a regulatory title — go figure).

My blog is called A Stitch in Haste (long story), where I write under the blogonym “KipEsquire” (long story). I don’t just blog about law, but also a whole coterie of libertarian topics. So feel free to visit and see what you’re missing.

I am a 2003 graduate of Brooklyn Law School. I like to think that I “majored” in torts, having taken several classes in that field. On the other hand, the recent explosion of gay rights litigation has increasingly steered me away from torts and toward Fourteenth Amendment jurisprudence; I’ve also always had a soft spot for the Fourth Amendment, so we’ll have some search & seizure posts. But don’t worry — I promise not to get too “constitutional” on you.

For the résumé voyeurs, I have a B.S. in Business & Economics from Lehigh University and an M.A. in Economics from Cornell University. I consider the economic analysis of liability and damages to be a far too neglected topic in the law. I do not, however, consider myself a “Law & Economics” type. I’m also a Chartered Financial Analyst. But don’t worry — there will be no financial statement analysis here (well, maybe just a little…).

I am licensed to practice law in New York State, though I have never set foot inside a courtroom, except for jury duty (and I have never actually been seated on a jury).

I have a bio page here for those interested. You can reach me at kipesquire@yahoo.com.

I’d like to thank Walter for his kind invitation. Overlawyered is far and away one of my favorite blawgs — except when he beats me to the punch and blogs about something before I do (which is all too common). I hope I can live up to his standards.

Overlawyered Chile edition

The mayor of Valparaiso is looking into suing in the US over a National Geographic documentary that shows what the effects of an earthquake would be on the Chilean town. (Matt Malinowski. “Valparaiso considers lawsuit against National Geographic”, Santiago Times, Aug. 8). Hat-tip to reader F.R., who reports “The following article in Spanish adds some information. The city is consulting with Chilean politician and lawyer Jorge Schaulsohn (who per other sources studied at Benjamin Cardozo Law School and is admitted to practice in New York). Schaulsohn states that it makes sense to bring this lawsuit only in the U.S., and that the damages that can be recovered there are ‘of a different nature and amount’ (presumably compared to those recoverable in Chile).”

De-villainizing Dr Pepper

Commentary on soda-tax proposals that’s equally applicable to the obesity litigation wars:

…soda, by itself, isn’t making us fat. According to numbers from the U.S. Department of Agriculture, regular soda consumption has been falling every year since 1998, but at the same time obesity has skyrocketed. In 2004, we actually drank less soda per person than in 1995, long before obesity was making headlines.

(Sara Cseresnyes and Andrew Chamberlain, “Soda Tax the Wrong Way to Help Curb Obesity”, Denver Post, Jul. 21, reprinted at Tax Foundation site) (via Radley Balko, who adds, “Yep. In fact, the beverage that has by far seen the largest increase in consumption since about 1980 is bottled water. Diet soda is second.”) Related: Lorraine Heller, “The Obesity Blame Game”, Beverage Daily, Aug. 7, and reader feedback at that publication.

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