Welcome National Review Online and Weekly Standard readers

At National Review Online, our Manhattan Institute colleague Jim Copland contrasts Hollywood’s oddly heroic image of the trial lawyer with the often socially destructive reality, citing the blame-shifting for profit exemplified in the Ninth Circuit’s recent Ileto v. Glock case (gun manufacturer, as opposed to criminal, gets sued over racist’s murder spree). (“Fiction to Fact”, Nov. 26) And the Weekly Standard, discussing the same case in its “Scrapbook” feature (Dec. 1, last item, “Shooting Blanks” — currently subscribers only) cites this commentary by Ted Frank on “the excellent website Overlawyered.com”. The Standard’s editorialists also point out that despite the plaintiffs’ elaborately spun theories of negligent distribution, the Glock in the case “was originally sold to a police department. … [In future,] manufacturers like Glock will presumably want to be wary about the kind of police departments they sell their firearms to.”

Newsweek query (updated)

[Revised and updated, see below] Newsweek magazine is preparing a special feature on fear of litigation, and although we’ve been working with their writers for a while on it, they asked to hear directly from readers like you if you can offer personal examples from your own experience of how you’ve changed the way you do business, go to school, pursue recreation, etc. because of your or someone else’s fear of being sued. [Update 1 p.m. EST Wed. — Newsweek’s writer tells us that this notice has elicited enough of the sort of the material she requested, so we are taking down the contact info. Thanks to our readers, including those who cc’d us on their correspondence]

Appeals court slashes Romo punitives

“A California appeals court has cut a record $290 million punitive-damages verdict to $23.7 million for a Ford Bronco rollover accident that killed three people.” The decision in Romo v. Ford Motor is the largest award reduction yet following guidance from the U.S. Supreme Court in its April decision in a punitive damages case against State Farm. (David Kravets, “Court reduces $290 million verdict against Ford to $23.7 million”, AP/San Francisco Chronicle, Nov. 25). “As we read State Farm ? the legitimate state goal that punitive damages may seek to achieve is the ‘condemnation of such conduct’ as has resulted in ‘outrage and humiliation’ to the plaintiffs before the court,” Justice Steven Vartabedian wrote for [a unanimous panel of California’s 5th District Court of Appeal]. “It is not a permissible goal to punish a defendant for everything it may have done wrong.” (Mike McKee, “Punitive Damages Take Big Hit”, The Recorder, Nov. 26). The Romo trial itself in 1999 was remarkable for its combination of brazenly demagogic plaintiff’s arguments and bizarre jury deliberations: see Aug. 24, 1999, Sept. 17-19, 1999, Aug. 27, 2002 and more recent links. Update Feb. 15: case settles.

Celebrity edition Overlawyered entry

According to the New York Daily News, if Michael Jackson’s accuser sues him, it won’t be the first time he’ll be a plaintiff in a civil case. In 1998, the then eight-year-old was nabbed shoplifting with his parents in a JC Penney parking lot, resulting in a burglary charge. The confrontation turned violent, and a civil lawsuit was brought charging false arrest and battery. “As part of the settlement, charges against the family were dropped. The family collected $200,000.” (Matthew Heller et al., “Troubled past of kid & kin”, Nov. 25). A 1994 GQ article by Mary Fisher (reprinted various places on the Web) has some disturbing things to say about the parents of Jackson’s accuser of ten years ago–though the source of many of those allegations is Anthony Pellicano (see Nov. 11).

Meanwhile, Liza Minnelli and David Gest, at whose wedding Jackson was the best man, are now suing each other: The Smoking Gun has the his and hers lawsuits.

EU court: church website violated privacy law

In a widely awaited decision, the European Court of Justice has ruled that a Swedish woman can be fined about $500 for identifying and publishing personal details about fellow church volunteers on her personal web site in breach of “data protection” privacy laws. Bodil Lindqvist of Alseda parish had published online “some full names, telephone numbers and references to hobbies and jobs held by her colleagues. In relation to one lady, Lindqvist also revealed that the volunteer had injured her foot and was working part-time on medical grounds.” A Swedish court found that she had violated data-privacy law in posting the page and the European Court agreed. (“Identifying people on-line violates Data Protection laws, says European Court”, Out-Law (UK), Nov. 7). We originally reported on the case Sept. 20, 2000.

Specialized business courts

Through most of the 20th Century the preferred model in American court organization was that of the generalist court in which a given corps of judges applied a standard set of procedures to handle a wide, not to say bewildering, variety of cases. In the past couple of decades, however, there has been renewed interest in the idea of establishing specialized courts to handle some types of recurring or distinctive cases: intellectual property, complex mass torts, low-level drug offenses, and so forth. “More than a dozen states, including Massachusetts, Rhode Island and Connecticut, have introduced specialization into their courts to deal with business disputes. Some programs are recent and some, like those in New York and Delaware, have been operating for decades.” Removing complex commercial litigation to its own docket can assist in the development of greater judicial expertise, useful procedural innovation and more consistent law; it can also help unclog the schedules of courts that handle more conventional cases, according to its advocates. The success of specialized business courts is now encouraging other states to consider adopting the model, as is now the subject of discussion in Maine. (Andrew Grainger (New England Legal Foundation), “Business specialization in court system a good idea”, Portland Press-Herald, Oct. 31)(& letter to the editor, Dec. 6).

MTBE liability and the energy bill

Although there are plenty of outrages in the energy bill, argues Gregg Easterbrook at his New Republic weblog, one provision that is not outrageous is the waiver exempting oil companies from liability for using the gasoline additive MTBE (methyl tertiary-butyl ether) (Nov. 24). “Democrats are expressing outrage over the MTBE waiver because some enviro fundraisers see this chemical as the next one to get people really frightened over, while the tort bar has visions of big settlements dancing in its head.” But Congress mandated the use of MTBE in its 1991 Clean Air Amendments, Easterbrook says, and it is strange to punish petrochemical companies for complying with the wishes of both Republican and Democratic environmental officials. Coverage: H. Josef Hebert, “GOP lawmakers blame suits over gas additive for bill’s delay”, AP/Cleveland Plain Dealer, Nov. 24; Michael Davis, “Energy measure hinges on MTBE dispute”, Houston Chronicle, Nov. 21; “Congress Debates Gasoline Additive Liability”, AP/Fox News, Oct. 7. And this morning it is being reported that the energy bill has died for this year in the Senate, in part because of irreconcilable disputes over the MTBE waivers (Dan Morgan, “Senate Energy Bill Dead for This Year”, Washington Post, Nov. 25)

Teenage assault: the taxpayers did it

“A King County jury [last week] awarded a Somali refugee $8.8 million, finding that negligence by state social workers contributed to a savage assault by a gang of teenagers living in a West Seattle foster home.” Attorney Jack Connelly, representing beating victim Aba Sheikh, said the state Department of Social and Health Services should have moved two delinquent teenagers from foster care to more restrictive and closely supervised custodial settings. “Assistant Attorney General Jeff Freimund said yesterday the verdict puts social workers in an untenable position — complying with laws that require foster kids be put in the least restrictive, most ‘family-like’ setting possible, while being held responsible if the children exploit their freedom and commit crimes.” DSHS officials called the ruling an “unprecedented” expansion of state liability and said if it is sustained the department “will have to institute extraordinary new constraints on children in foster care, interfering with their growth into successful citizens.” “Aba Sheikh also will be paid $300,000 by Shell Oil, because the attack occurred at a gas station franchised by the company”. (“Jury faults DSHS for attack by foster kids”, Seattle Times, Nov. 18). For another case in which attorney Connelly made the state of Washington pay dearly for imposing insufficiently custodial conditions on persons under its authority, see Sept. 13-14, 2000 (auto accident by convict serving community-supervision portion of sentence)(& letter to the editor, Dec. 6). Update Apr. 16, 2006: state’s high court overturns verdict.

Great moments in discrimination law

In Peterson v. Wilmur Communs., Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002), a telemarketing firm demoted an employee when it discovered through a newspaper account that he was a “reverend” in the virulently racist World Church of the Creator, which preaches “racial holy war” and instructs its adherents that virtue consists in advancing the interest of the white race. The employee supervised eight workers, including three non-whites, and the employer said it felt that the latter employees would not be confident of having their work evaluated objectively under his supervision. A federal court held that although the man’s “church” professes no belief in a god, supreme being, or afterlife, what matters was that it holds itself out as religious and inculcates moral and ethical precepts which its adherents sincerely embrace with an intensity comparable to religious belief. The court concluded that the employer had violated federal law against religious bias. A law firm newsletter comments that henceforth employers “may risk allegations of religious discrimination if they fail to protect employees’ religious rights to believe in white supremacy. At the same time, they may risk allegations of race discrimination by nonwhite employees supervised by white supremacists. The decision also opens the door for other groups to reformulate themselves into religions.” (“White Supremacy Held To Be Religion Under Title VII”, McLane law firm newsletter, Nov. 2002 (PDF); Wimberly Lawson newsletter, Sept. 2002, GoogleCached; Holland & Knight Employment, Labor and Benefits newsletter, Jul. 29, 2002 (PDF); HRCalifornia.com (California Chamber of Commerce), “Can You Believe This? Truth Beats Fiction in Employment Law” (list of strange and unusual labor law cases), Nov. 2003) (via Employer’s Lawyer). An account from the Southern Poverty Law Center downplays the significance of the ruling (“Race as Religion“, undated).