It’s a distraction, the same as using a cell phone while driving, claim state reps John McKeon (D-Essex) and Loretta Weinberg (D-Bergen), who are co-sponsoring a bill that would impose $250 fines on those caught with lighted cigarettes behind the wheels of their own cars. The bill is given scant chance of passage — this year, at least (“No butts behind wheel? N.J. moves on smokers”, AP/MSNBC, Jul. 25; “Jersey going too far with anti-smoking bill” (editorial), Camden Courier-Post, Jul. 27; Reason “Hit and Run”, Jul. 25; Outside the Beltway, Jul. 25). Blog reaction has been overwhelmingly negative. Mark at Curious Character (Jul. 27) believes “it’s bad policy to pass laws that you can’t (and won’t) be able to enforce”. Functional Ambivalent (Jul. 26) points out that a study of drivers’ distraction-related accidents shows drivers’ fumbling with climate controls and stereo systems causes many more accidents than fumbling with cigarettes, but no one is proposing to ban music in cars (yet). Jeff Goldstein (Jul. 25) sees a Kelo angle, while KipEsquire (Jul. 25) points out that smokers allowed to indulge in their habit make calmer drivers than those suffering from prolonged nicotine deprivation. For more on the ever-widening reach of smoking bans, see our tobacco page, including Jul. 12, 2005 and Jul. 29, 2004 (smoking in apartments and condos), Jun. 24, 2004 (on the beach), and May 29, 2004 (in cars when children are present).
More on orphan copyright
“This week, at the urging of prominent legal scholars, academic-library organizations, technology companies such as Google and Microsoft, and many other interested parties, the U.S. Copyright Office is holding a series of hearings to determine whether copyright law should change to allow for more liberal use of orphan works” — that is, works whose copyright holders cannot be tracked down with reasonable diligence. The Chronicle of Higher Education has a good roundup on an issue last seen in these columns Apr. 14. (Scott Carlson, “Whose Work Is It, Anyway?” Jul. 29)(via Arts & Letters Daily).
Technical difficulties
For the past 24 hours+ the site has labored under technical difficulties which prevented new posting and also disabled internal site functions such as search. These functions are back up again, but the situation is not yet stable and it looks like I’ll be scrambling for a bit to get the site’s technical aspects on a sounder basis.
Incidentally, if the internal site search stops functioning again at a time when the site itself is accessible, try this Google-search link.
Evan Schaeffer…
…certainly is feeding me material lately (Jul. 25).
Wisconsin ADA suits, cont’d
The Appleton Post-Crescent has now completed publishing its investigation of the Ms. Wheelchair America pageant, including the pageant’s apparent role in client recruitment strategies for the Florida-based law firm of Schwartz Zweben & Associates (see “Behind a pageant, busy lawyers”, Jul. 21). The overall series roundup can be found here; among the more topical stories in the series are “Law firm’s ties to pageant”, Jul. 16 (firm filed 54 lawsuits on behalf of Jaclyn Kratzer, Ms. Wheelchair Pennsylvania 2003, and 37 lawsuits on behalf of Jeri Wasco, coordinator of the Ms. Wheelchair Washington D.C. pageant); J.E. Espino, “Businesses settle suits out of court”, Jul. 17, and Ed Lowe, “Local lawsuits trigger debate over ADA compliance”, Jul. 24 (quotes me on the question of whether serial complainants were just really unlucky or went out in search of reasons to sue).
Federal tobacco suit update
In the federal tobacco suit (Jun. 21, Jun. 13), the government has asked the Supreme Court to overrule the D.C. Circuit and give the government the legal authority to pursue $280 billion in a disgorgement remedy. There’s very little chance the Court will take the interlocutory appeal. (Eric Lichtblau, “U.S. Seeks Higher Damages in Tobacco Industry Suit”, NY Times, Jul. 19); SCOTUSblog, Jul. 18; certiorari petition). Meanwhile, Judge Gladys Kessler has taken the unusual (and questionable) step of permitting “public-interest” groups to intervene in the case and take over the government’s argument for damages, which is perhaps a clue where she stands on the litigation, leaving open the question of whether the D.C. Circuit will countenance the result. (Mark Kaufman, “A Late Twist in the Tobacco Case”, Washington Post, Jul. 23; motion to intervene).
Kids’ do-not-email registries
New laws that went into effect in Michigan and Utah at the beginning of the month could open up substantial and surprising areas of civil and criminal liability for entities that put out email newsletters, critics say. The laws authorize parents, guardians and others to enroll minors’ email addresses in new do-not-mail registries; after 30 days’ listing, it becomes illegal for anyone to send material unsuitable to minors to such addresses even at the account holder’s request. Among material that has in various contexts been tagged as unsuitable to minors are sites such as Salon.com and discussions of various controversial public issues. (Declan McCullagh, “Why ribaldry could earn you prison time”, News.com, Jun. 27). According to one commentator, an email may be unlawful if it merely contains a link to a third party site (such as a newspaper’s or magazine’s website) which in turn displays advertising for beer, wine, betting or other products and services that are off limits to minors. (Paul Collins, “New Michigan and Utah Child Protection Registry Laws”, spamfo.co.uk, Jun. 29). Already, libertarian feminist author and FoxNews.com commentator Wendy McElroy has suspended publication of her email newsletter, citing fear of liability under the new laws (“Suspension of Emailed Ifeminist Newsletter”, History News Network/Liberty & Power, Jul. 13)(via Tom Palmer). It is contemplated that maintainers of email newsletters that wish to retain the right to discuss or link to liquor/gambling/off-color content will purchase match/purge services on a monthly basis from the registrars of the do-not-mail lists, but such cross-checking will require the payment of fees as well as raising troubling privacy questions. For details of how entrepreneurial Utah law firms have seized on earlier anti-spam legislation to generate mass litigation against legitimate businesses in that state, see my Reason Online article, “You May Already Be a Loser”, Dec. 8, 2003.
Mississippi lawyer squabble
A reader characterizes:
I admit I get a perverse pleasure when I see the sharks feeding on each other. But this is just too good. Lawyer Luckey gets caught altering dates on asbestos claims, gets fired by Scruggs for altering the dates but then has the chutzpah to demand his cut of the contingency fee loot… and the judge gives it to him! I guess no one ever thought any disciplinary actions on anyone’s part was needed or indicated.
And it’s even sillier than that: the bulk of the damages appears to be for tobacco claims the partnership financed after Luckey was kicked out in 1993, triggering twelve years of litigation. Magistrate Judge Jerry Davis of the federal court in Oxford, Mississippi, awarded $13 million plus attorneys’ fees; the parties appear to have cut a deal so that there will be no appeal. (Leesha Faulkner (!), “Scruggs slapped with $13M settlement over partnership”, Northeast Mississippi Daily Journal, Jul. 22). More on Richard “Dickie” Scruggs: Jun. 15, Apr. 30. This appears to be the culmination of the fight that resulted in subpoenas to the Mississippi Supreme Court over Scruggs’s alleged influence there; at the time, Scruggs pooh-poohed the allegations, arguing that the dispute was only worth a few thousand dollars, and therefore not something worth risking improper influence over. (Jerry Mitchell, “Attorney testifies in justice probe”, Jackson Clarion-Ledger, May 17, 2003; “Lawyer, Former Colleagues Dispute Fees”, AP/Biloxi Herald, Mar. 27, 1998). Alwyn Luckey represents approximately 1500 Mississippi silicosis plaintiffs, so his troubles may not be over. (Updated from Jul. 23 post.)
Update: suing the goal post maker
Updating our Sept. 30, 2003 item: an attorney for Andrew Bourne of Liberty, Ind., says his client will appeal a recent court ruling that found that a manufacturer of goal posts, Connecticut-based Gilman Gear, is not responsible for injuries Bourne sustained when his fellow Ball State students toppled a goal post after a 2001 football victory. (Brian Zimmerman, “Paralyzed man will appeal ruling”, Richmond (Ind.) Palladium-Item, Jul. 23).
Update: Larry Klayman and respectability
Litigious gadfly Larry Klayman (Apr. 16-17, 2002), having cut a rare publicity swath filing mostly long-shot legal actions against both the Clinton and Bush administrations, is now setting up a Florida office on behalf of a more conventional-seeming law firm, Cleveland, Ohio-based Walter & Haverfield. (Jessica M. Walker, “Ohio Firm Taps Judicial Watch’s Klayman for Miami Launch”, Daily Business Review, Jul. 15). For more on Klayman, see Jacob Weisberg, “Nut Watch”, Slate, Jun. 6, 1998 (sues own mother), Curmudgeonly Clerk, Sept. 23, 2003 (similar). But at least Alan Keyes admires him (Timothy Noah, “Larry Klayman for Attorney General”, Slate, Jan. 24, 2000).