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Our free periodic newsletter went out to subscribers this afternoon (in fact, they may accidentally have received two copies — we’re still getting the hang of the new interface). Each issue summarizes a few weeks’ worth of postings in terse yet wry style. To join the list, change your address, etc., visit this page (requires Google registration).

Arthur Andersen; blogospheric comings and goings

Pseudonymous blogger “Robert Musil” has resumed his financial and political blogging after a hiatus and is drawing pointed lessons (May 31, Jun. 1, Jun. 2) from yesterday’s unanimous Supreme Court decision overturning the conviction of Arthur Andersen in the Enron affair. For more on the Andersen case, see Point of Law’s coverage yesterday and today. Among other financial topics “Musil” has been commenting on lately: the Enron scandal itself (here and here), Sarbanes-Oxley (here and here), and the Supreme Court’s recent rebuke to the Ninth Circuit on the calculation of damages in securities cases, in the Dura case.

On a different note, alas, Tim Sandefur is suspending posting at his Freespace blog, which has been a valuable resource on law and libertarian philosophy and often the target of links from this page. Incidentally, the blogroll on Overlawyered’s front page (right-hand column) is deliberately kept short (and rotated fairly often), but the site’s General Links page offers a longer blogroll which readers may enjoy exploring, as does Point of Law (left column).

Defensive medicine? Lots of it

Doctors admit ordering unnecessary diagnostic tests or avoiding troublesome patients for fear of malpractice lawsuits, perhaps harming care in the process, a survey released on Tuesday said.

The survey of 824 Pennsylvania physicians [in six specialties considered susceptible to litigation] found 93 percent confessed to ordering unnecessary tests, while 42 percent said they referred patients elsewhere if they had complex problems or were perceived as litigious. Both practices are referred to as so-called defensive medicine.

“The most frequent form of defensive medicine, ordering costly imaging studies, seems merely wasteful, but other defensive behaviors may reduce access to care and even pose risks of physical harm,” wrote lead author David Studdert of the Harvard School of Public Health.

(Andrew Stern, “Doctors’ Fear of Lawsuits May Hurt Care”, Reuters/ABCNews.com, May 31). For more on defensive medicine, see, among others, Feb. 1, 2004, Jun. 5, 2002, Point of Law, Apr. 10, and this Peter Huber column on an earlier Daniel Kessler study. Plus: KevinMD has more links here and here on the new study.

“Stop beaming rays at my head”

Creatively resolving grievances without resort to legal process:

As time went on [at my first job after law school, at the federal courthouse in Kansas City, Mo.], I met all manner of people who had business for the court. We met several people who complained that some government department or other was beaming invisible rays at their heads. One of these poor souls came in on a quiet Friday afternoon, so another clerk and I took him over to the Lexis terminal, at that point an imposing stand-alone console about the size of a small desk. We turned it on, typed in “Stop beaming rays at John Doe’s head,” hit “enter” and turned it off. Doe left happily, the voices in his head now silent, and we returned to our duties, knowing that we had helped one American citizen obtain justice in an imperfect world.

(Tom Alleman, “Are Pro Se Suits Ridiculous, Per Se?”, Texas Lawyer, May 9).

One-way fee shifting and religious litigation

Under the Civil Rights Attorney’s Fees Award Act of 1976, plaintiffs collect fees if they win even in part, but pay no fees if they lose. That puts a bludgeon in the hands of objectors in church-state lawsuits (as well as in many other kinds of lawsuits characterized as being about civil rights). Rep. John Hostettler of Indiana has introduced the Public Expression of Religion Act, a bill that would attempt to level the playing field as regards claims of religion-related civil rights violations by public officials. It would do so, however, by eliminating fee entitlements entirely; that would indeed deprive long-shot suits of much of their in terrorem effect, but at the cost of undercutting valid claims brought under the act. Why not take a look at moving toward full two-way fee shifting instead? (Christopher Levenick, “High Noon at Sunrise Rock”, WSJ/OpinionJournal.com, May 27).

Hot beverage temps

Touched on again in Ted’s travelogue (May 25):

Another hot-water datapoint: a television commercial featuring an older British housewife talking about her need for a “cuppa” during the day, and showing off her “space-age kettle.” She then proceeds to set the temperature of her water to 85 Celsius, or 185 degrees Fahrenheit.

See May 24, Nov. 19, etc.

ADA filing mills

Seems they’ve now arrived in Sacramento and nearby Solano County: Ron Wilson and Byron Chapman, who say they’re disability rights activists, “together have filed more than 100 ADA lawsuits in Sacramento federal court in just the past four years. In some cases, the lawsuits come without warning.” “The number he quoted to me was $75 an hour, he’ll do the consulting,” said Vacaville businessman Tom Phillippi, of Wilson. “You pay him $75 an hour as a consultant and you won’t necessarily face him in court.” (“Businesses Come Together To Fight Disabled Lawsuit Abuse”, KXTV, Mar. 8). For more, see Mar. 18 and many other posts linked from there.

Aguilar v. Avis, cont’d

Some years back, Justice Janice Rogers Brown of the California Supreme Court wrote a dissent in the widely noted harassment-law case of Aguilar v. Avis, in which the court ordered the drawing up of a list of forbidden words that employees of a rental car franchise were to be prohibited from using to each other on the job even in private conversation (see Sept. 11, 2000). The other day a New York Times editorial (“Disarmament in the Senate”, May 25) assailed Rogers for her supposedly extreme position in dissenting from Aguilar (which was decided 4-3), and James Taranto of the WSJ’s “Best of the Web” quite appropriately rises to her defense (May 27). As Taranto notes (but the Times somehow fails to), Justice Stanley Mosk, regarded as the California high court’s most liberal member, joined Brown in dissenting from Aguilar as a prior restraint on speech rights. For more, see Tim Sandefur, Sept. 23, 2004.