John Stossel revisits two of the high points in EEOC history, its crusades against sex imbalances in the Hooters restaurant waitstaff and Sears hardware departments (“When sexism claims are a real hoot”, syndicated/TownHall, Jun. 28).
Craigslist classifieds suit
Google, Amazon, AOL and Yahoo are all defending Craigslist in the suit demanding that it censor its housing ads so as to prevent users from requesting “gay Latino sought for roomshare” and the like (Lynne Marek, “Online Peers Stand Up for Craigslist in Lawsuit”, National Law Journal, Jun. 28). Earlier coverage: Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, 2006. Craigslist’s defense, by CEO Jim Buckmaster, is here.
New column — Times Online
I’m pleased to announce that I’ve begun a new periodic gig as a columnist on American law for the online Times (the London-based one). My first effort examines the possibility, discussed in this space recently, that fans of Barbra Streisand might file a class-action lawsuit against the singing legend because she is again doing a concert tour years after a tour that was supposed to be her farewell. (Walter Olson, “The long, long, long goodbye”, The Times Online, Jun. 27).
Incidentally, British readers visiting this site for the first time will find an archive of UK-related material here.
Memo to campaign consultants
If you’re running someone for Congress and he wants to make an issue out of his support for litigation reform — even if, or especially if, he’s actually shown a willingness to support such reform as a state legislator — it’s probably best if his own law firm doesn’t have a full-page “We get results!” ad in the Yellow Pages inviting victims of “slip and fall injuries, medical negligence … dog-bite injuries, wrongful death [and] defective products” to “put our experience to work for you. … No fee unless you collect.” (Eric Zorn, “Candidate’s reform talk may be adding insult to injury”, Chicago Tribune, Jun. 22).
Miscellaneous personal tech note
I’ve finally replaced my aging PC with an iMac and am in the midst of the transition now — apologies for some email delays that have resulted. Mac’s native browser, Safari, doesn’t play well with Movable Type so I’m sticking with Firefox. I’m a complete newcomer to the iMac, so feel free to send useful tips about getting the most from it.
Investor Protection: A Review of Plaintiffs’ Attorney Abuses in Securities Litigation and Legislative Remedies
I’m testifying tomorrow morning before the Capital Markets, Insurance, and Government Sponsored Enterprises Subcommittee, the same hearing on H.R. 5491 Sam Munson covered at Point of Law.
Those interested in soundbites can see me on CNBC’s “Power Lunch” tomorrow at approximately 1:20 pm Eastern. I’ll link to testimony once it’s publicly available.
Protection Against Unanticipated Lawsuits
On Monday, in Arlington Central School District v. Murphy, the Supreme Court limited the court costs recoverable under the Individuals with Disabilities Education Act (IDEA), holding such costs did not include the cost of expert witnesses hired by the plaintiffs. This is an important ruling because IDEA suits are the most common variety of student lawsuit in federal court. Suits under the IDEA dwarf the number of lawsuits brought by students under the Constitution. They also have far more effect on school discipline, since the IDEA makes it very difficult to suspend students with behavioral, emotional, or other disabilities from school for misconduct, even when their misconduct is severe and unrelated to their disability.
The Supreme Court reasoned that the IDEA is a spending clause statute, which only binds school districts that accept federal funds, and that lawsuits against recipients of federal funds should not be allowed unless they have “clear notice” in the statute of their potential liability when they accept federal funds.
This “clear notice” principle, if applied to other laws, could help stem a flood of unanticipated lawsuits and administrative charges against school districts and hospitals. For example, Title VI of the Civil Rights Act forbids racial discrimination by recipients of federal funds. In practice, the Education Department has turned this simple ban on discrimination into an affirmative mandate imposed on schools to provide “oral and written translation services” to non-English speakers in a host of foreign languages free of charge. It interprets the statute as requiring that any parents who do not speak English be given written or oral translations of school information, even if the parents’ language is obscure and spoken by few students at their child’s school.
This duty is not clearly expressed in the Title VI statute, which Alexander v. Sandoval, 532 U.S. 275 (2001) ruled only reaches intentional racial discrimination. Nor is the duty even clear from the Education Department’s codified Title VI regulations, which prohibit not only intentional discrimination but also unintentional, “disparate impact” discrimination. A “disparate impact” discrimination claim requires a lot of affected students or employees, with big gaps between different races, not just language groups, much less a failure to accommodate rarely spoken Third World languages. (Moreover, even banning “disparate impact” may be beyond the Department’s authority under the Supreme Court’s Alexander v. Sandoval decision.)
(Federal agencies’ bilingual education mandates are not easy to satisfy. While working in the Education Department’s Office for Civil Rights, I learned that school districts investigated over their accommodation of non-English speakers are uniformly and invariably found by OCR to be in violation of Title VI).
The Supreme Court’s decision should prompt federal civil rights agencies to revisit their expansive interpretations of federal spending clause statutes like Title VI, Title IX, and the Rehabilitation Act.
The High Cost of Petitioning
A radical pro-affirmative action group, By Any Means Necessary (BAMN), joined by Detroit’s mayor, Kwame Kilpatrick, have filed a Voting Rights Act lawsuit against the sponsors of the Michigan Civil Rights Initiative (MCRI) in federal court. MCRI is a ballot initiative would ban racial and gender set-asides and preferences in state contracting, employment, and public education. It is modeled on an earlier measure passed by California voters and upheld by the federal courts. BAMN argues that black voters who signed the petition to put MCRI on the ballot did so only because they did not realize it would restrict affirmative action, because they were confused by MCRI’s title, text, or misleading statements by MCRI signature gatherers. That, it claims, amounts to fraud.
BAMN’s lawsuit is factually groundless. Its fraud claims were considered and rejected by the Michigan Court of Appeals, which ordered MCRI placed on the ballot. MCRI’s text, which was presented to all petition signers, expressly prohibits racial preferences, eliminating any confusion about its effect on affirmative action. Moreover, the Voting Rights Act generally applies to the acts of state election officials, not private parties, and cases such as Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988), hold that the Voting Rights Act does not apply to initiative petitions.
BAMN’s lawsuit appears to be part of a pattern of intimidation. One BAMN official is accused of threatening MCRI executive director Jennifer Gratz with a knife.
BAMN’s suit is another example of how civil rights lawsuits are increasingly misused as political weapons or tools of censorship. For example, in Affordable Housing Development Corporation v. Fresno, 433 F.3d 1182 (9th Cir. 2006), a developer used the Fair Housing Act to sue citizens who publicly opposed a housing development, arguing that their petitioning of city officials resulted in the city not funding the project. That, the developer argued, had an unlawful “disparate impact” on minority groups destined to live in the development. The trial court initially accepted this argument, holding that the Fair Housing Act overrode the citizens’ right of free speech. Years later, the Ninth Circuit Court of Appeals rejected the lawsuit, holding that the citizens’ opposition to the project was protected by the First Amendment and the Noerr-Pennington doctrine. (The Noerr-Pennington doctrine protects citizens from antitrust and civil rights claims based on their speech and petitioning activity). It ordered the developer to pay the citizens’ crippling legal bills, which had risen to hundreds of thousands of dollars.
BAMN’s lawsuit would raise First Amendment problems even if it were true that voters misunderstood MCRI’s purpose, and even if MCRI’s sponsors knew of any erroneous statements about MCRI by signature gatherers. The courts have generally held that the First Amendment bars liability for speech in ballot initiatives and other political campaigns, even if the speech is knowingly false.
IP protection for recipes
Peter Lattman and the WSJ have a roundup (Jun. 26).
“…And there’s a thousand more in this state that do it”
One crooked Pennsylvania lawyer disbarred and, by his own account at least, 1,000 more to go:
The Pennsylvania Supreme Court has ordered the disbarment of a Philadelphia attorney who served time in prison after pleading guilty to charges he defrauded a slew of insurers on behalf of personal injury plaintiffs who in reality had not needed medical attention.
During a disciplinary hearing Michael Radbill suggested that the practice of representing clients who are “not really injured” is endemic across the state, according to the report from the Supreme Court’s Disciplinary Board.
He also indicated that over the course of a 30-year career, 80 percent of his practice had been centered on the representation of uninjured personal injury clients. …
The federal investigation also produced evidence that Radbill had employed people to recruit personal injury clients, help stage slip-and-falls for his clients and oversee his clients’ treatment by medical providers willing to falsify records and insurance claims, according to the report….
According to the report, Radbill said at a disciplinary hearing that “I got into personal injury cases and … when I was a young lawyer, [people told me], ‘You’re going to get accident cases of people that aren’t really hurt, you say they’re hurt and you send them to the doctor.’
“That’s not right, OK?” Radbill continued, according to the report. “And I did it for 30 years and there’s a thousand more here in this state that do it, and I told [the investigators] that, and they said, ‘Yeah, but you got caught,’ [for] which I served my time, I didn’t make excuses, so that’s true.”
(Asher Hawkins, “Representation of Uninjured Clients Brings Disbarment for Pa. Lawyer”, The Legal Intelligencer, Jun. 23).