“‘Prosecutor had ordeal as defendant’“, May 14, 2003.
Sex abuse charges, 2003: “‘Sex, God and Greed’“, May 28; “‘No Crueler Tyrannies’” (Dorothy Rabinowitz), May 8 (& Apr. 17, 2001). 2002: “‘Reno owes the public answers’“, May 7; “Updates” (rape shield laws), Jan. 9-10 (& more on Jovanovic case: Dec. 23-26, 1999). 2001: “Sued if you do dept.: co-worker’s claim of rape“, Nov. 7-8; “‘Teen sex offenders face years of stigma’“, Nov. 5; “‘Crying wolf’“, Oct. 30; “‘Proposed Law Would Consider Alcohol as Date-Rape Drug’” (Wisc.), Oct. 3-4. 2000: “Federal commerce power genuinely limited, Supreme Court rules” (strikes down VAWA’s lawsuit provision), May 16 (and see Wendy Kaminer, Feb. 24); “Updating Jane Austen“, Apr. 28-30; “Court rejects ‘telephone sex slave’ charge“, Apr. 24; “Philadelphia: feminist groups to be consulted on whether to classify incidents as rape“, Mar. 27 (and see Cathy Young, April 6); 1999: “Okay, we admit it: we admire these lawyers” (Wenatchee defenders), Sept. 4-6; “Personal hell“, Jul. 31-Aug. 1.
“Employers liable for not filtering raunchy spam?“, Apr. 10-13, 2003.
Watch those emails: “Employers liable for not filtering raunchy spam?“, Apr. 10-13, 2003; “Why we lose workplace privacy“, Aug. 9, 2001; “Watch those fwds” (Dow Chemical fires employees for email use), Aug. 21-22, 2000; “Oops: D.A.’s and judge’s fwding of sex pics deemed ‘unfortunate event’“, April 11; “Harassment-law roundup” (email-shredding software), Feb. 19-21; “Emails that ended 20 Times careers“, Feb. 8-9, 2000; “Please — there are terminals present” (Bloomberg censors its terminals), July 30, 1999.
“After failed workplace romance, a $1.3 million bill“, Feb. 6-9, 2003.
“Incoherence of sexual harassment law“, Oct. 15, 2002.
Sued either way: “Investigate, but gently“, Sept. 25-26, 2002; “‘Ex-Teach’s Suit: Kids Abused Me’“, Jun. 26-27, 2002; “Sued if you do dept.: co-worker’s claim of rape“, Nov. 7-8, 2001; “EEOC: unfiltered computers ‘harass’ librarians“, Jun. 4, 2001; “Customer offense” (supermarket bagger with Tourette’s), Jun. 9-11, 2000; “Columnist-fest” (Mona Charen on Mar. 10-12 story, below), Apr. 6; “Accused of harassment; wins $2 million from employer“, Mar. 10-12 (& update Jun. 2, 2003: award reversed); “‘Judgment reversed in Seinfeld case’“, Feb. 26-27, 2000; “Employment-law retaliation: real frogs from ‘totally bogus’ gardens“, Sept. 29, 1999.
“Banish those desk photos of spouse at beach“, Aug. 29-Sept. 2, 2002.
“Clipboard-throwing manager = $30 million clipping for grocery chain“, Apr. 19-21, 2002 (& update Jul. 26-28: damages cut to $8 million); “‘$3 million awarded in harassment’” (Illinois police department), Dec. 19, 2001; “Fieger’s firecrackers frequently fizzle” ($20 million harassment verdict against Chrysler), May 31, 2001; “The stuffed-grape-leaf standard” (feminist litigator asserts that $300K isn’t that much money), August 14-15, 1999.
“‘Surgeon halts operation over foreign nurses’ poor English’” (U.K.: he’s then threatened with disciplinary action for racism), Jul. 25, 2002.
“Catharine MacKinnon, call your office“, May 16, 2002.
“An eggshell psyche at U.Va. Law“, Apr. 8-9, 2002.
“Jail for schoolyard taunts?“, Feb. 27-28, 2002; “‘Boy faces jail for slapping girl’s bottom’“, Jan. 5-7, 2001; “Annals of zero tolerance” (six-year-old’s “sexual harassment”), May 22, 2000.
“European workplace notes” (UK: harassment of dyslexic), Feb. 25-26, 2002.
“Firehouse blues” (girly mags, Alaska), Feb. 20-21, 2002.
“‘Woman Wins Verdict, but no Money, Against Seagal’“, Jan. 4-6, 2002.
Office dating, “love contracts”: “Love contracts“, Dec. 10, 2001; “Ask the experts (if that’ll help)“, Oct. 19, 2000; “Ministry of love-discouragement“, May 3; “‘Love contracts’ spreading to U.K.“, Dec. 31, 1999-Jan. 2, 2000; “Weekend reading: evergreens” (“love contract” for office romances), Dec. 3-5, 1999.
“Employee’s right to jubilate over Sept. 11 attack“, Oct. 9, 2001.
“‘Lawsuit demands AOL stop anti-Islamic chat’“, Sept. 3, 2001.
“‘We often turn irresponsibility into legal actions against others’” (Robyn Blumner on U. of South Fla. art student harassment case), Aug. 13-14, 2001.
“Chandra, Monica, and sex-harass law“, July 27-29, 2001.
“Spoof memo draws EEOC probe“, June 26, 2001.
“‘Hearsay harassment’ not actionable“, June 12, 2001.
“EEOC: unfiltered computers ‘harass’ librarians“, June 4, 2001 (& see “Columnist-fest” (Wendy McElroy), June 22-24.
“Mistletoe dangerous even when absent“, April 18, 2001.
“‘2000’s Ten Wackiest Employment Lawsuits’” (too much sex talk in sex shop), April 13-15, 2001.
“Appeals panel: schools’ harassment rule unconstitutional“, Feb. 27, 2001; “Weekend reading” (Supreme Court’s invention of Title IX harassment law), August 21-22, 1999.
Business climate: “Why we lose workplace privacy“, Aug. 9, 2001; “Ask the experts (if that’ll help)“, Oct. 19, 2000; “The scarlet %+#?*^)&!” (companies cut clients loose for profane language), March 7, 2000; “‘Personally agree with’ harassment policy — or you’re out the door“, Sept. 22, 1999; “EEOC encourages anonymous harassment complaints“, Sept. 3, 1999.
Hate speech, hate crime laws: see free speech and media law page.
“Columnist-fest” (Sarah McCarthy on Paula Jones case), Nov. 14, 2000.
“Don’t meet with her alone“, Nov. 1, 2000.
“Ask the experts (if that’ll help)“, Oct. 19, 2000.
“White House pastry chef harassment suit“, Sept. 18, 2000.
“Harassment law roundup” (Confederate flags on employee cars, Jeffrey Rosen book, Avis v. Aguilar, do-as-we-say case), Sept. 11, 2000.
“Embarrassing Lawsuit Hall of Fame” (Mass. agency finds flatulence not harassing), Aug. 14, 2000.
“From the U.K.: watch your language” (college, job bureau restrict use of “lady”, “hardworking”), June 13, 2000.
“Victim of the century?” (principal collects disability benefits for sexual compulsion), June 2-4, 2000; “Doctor sues insurer, claims sex addiction“, Oct. 13, 1999.
“What the French think of American harassment law“, May 25, 2000.
“The four rules of sexual harassment controversies” (Claudia Kennedy case; female-on-male touching case; spanking initiation), May 15, 2000.
“Comment of the day“, May 5-7, 2000; “Recommended reading” (Roland White in London Times on chill to office banter), Jan. 25, 2000.
“Harassment-law roundup” (bathroom graffiti; Boston bar owner’s insensitive decorations; pin-ups and porn in police station), May 4, 2000.
“Book feature: ‘The Kinder, Gentler Military’“, April 3, 2000.
“The shame of the ACLU” (Aguilar v. Avis: ACLU intervenes on anti- free-speech side), Sept. 7, 1999; “Speech police go after opinion articles, editorial cartoons“, August 28-29, 1999.
“Harassment-law roundup” (Internet startups vulnerable), May 4, 2000; “Dot-coms as perfect defendants“, Jan. 17; “Harassment-law roundup” (Juno case), Feb. 19-21, 2000.
“Oops! Didn’t mean nothing by that, ma’am” (“Hello, good looking” directed at harassment trainer), Dec. 21, 1999.
“Suppression of conversation vs. improvement of conversation“, Nov. 12, 1999 (excerpts from Joan Kennedy Taylor book); “Risks of harm“, Nov. 13-14, 1999; “Harassment-law roundup” (Taylor book discussed), Feb. 19-21, 2000.
“Courts actually begin to define ‘harassment’; activists in shock“, August 6, 1999.
“Please — there are terminals present” (South Park on sexual harassment), July 30, 1999.
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Articles by Overlawyered.com editor Walter Olson:
“Title IX’s Invisible Ink” (Supreme Court invents right to sue schools over student-on-student harassment), Reason, August/September 1999.
“A Legacy of Dirty Laundry” (brief contribution to symposium on harassment law), The Women’s Quarterly, Winter 1999.
“Have the Harassment Rules Changed?“, Wall Street Journal, April 6, 1998 (judge’s dismissal of Paula Jones lawsuit).
“Punch the Clock, Sue the Boss“, New York Times, March 20, 1998.
“Shut Up, They Explained” (“zero-tolerance”), Reason, June 1997.
“The Long Arm of Harassment Law“, New York Times, July 7, 1996.
?When Sensitivity Training Is the Law? (Connecticut law requires training of managers), Wall Street Journal, January 20, 1993.
In addition, The Excuse Factory (1997) includes two chapters on harassment law, namely chapter 4 (“Fear of Flirting”) and chapter 14 (“Workplace Cleansing”). Neither is online.
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Other resources: Websites “Freedom of Speech vs. Workplace Harassment Law” (highly informative site maintained by Prof. Eugene Volokh, UCLA Law School) Organizations
The shelf of books critical of the overreach of harassment law got at least three important additions in 1999. Daphne Patai of the University of Massachusetts, known already as a co-author of Professing Feminism: Cautionary Tales From the Strange World of Women’s Studies, published Heterophobia: Sexual Harassment and the Future of Feminism. Cathy Young, columnist for the Detroit News, published Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality. And Joan Kennedy Taylor, associated with the Cato Institute, published What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment. (Also see our editor’s 1997 contribution, The Excuse Factory.) Archived Microsoft items, pre-July 2003Archived entries before July 2003 can also be found here.
2001: “Columnist-fest” (proposed settlement), Nov. 27; “Two views of Microsoft ruling“, July 2; “Microsoft v. Goliath” (Robert Samuelson essay), May 30; “Debate on Microsoft case” (Hazlett vs. Auletta), Mar. 2-4. 2000: “Microsoft wins one” (no direct Supreme Court review), Sept. 27-28; “‘A perverse use of antitrust law’“, Sept. 8-10; “Lenzner: ‘I think what we do is practice law’” (Oracle scandal), July 28-30; “Oracle did it“, June 28; “Cash for trash, and worse?“, June 26; “Jeff MacNelly, RIP” (three good cartoons), June 9-11; “Judge cracks wish bone“, June 8; “Microsoft opinion: the big picture“, May 12; “Microsoft case: commentators” (Samuelson, Tom Watson, Kinsley), April 19; “Bill Gates and the Nasdaq: why didn’t the Munchkins sing?“, April 13; “Krugman on MS: his ‘blood runs cold’“, April 11; “Silicon siege“, April 7-9; “Columnist-fest” (Larry Kudlow on $80B drop in MS stock evaluation), April 6; “Microsoft violated antitrust law, judge rules“, April 4; “Microsoft Windows downgrade” (parody site), March 27; “Hiring talent from the opposing camp” (co. hires prominent plaintiff’s lawyer Steven Berman), Feb. 28; “Microsoft temps can sue for stock options“, Jan. 11 (& see Feb. 17; letters, Dec. 20). 1999: “In race to sue Microsoft, some trip“, Dec. 23-26; “Roundup“, Dec. 3-5; “‘Actions without class’“, Dec. 2; “Class actions vs. high-tech“, Nov. 23; “Vice President gets an earful“, Nov. 22; “Roundup“, Nov. 17; “Fins circle in water“, Nov. 13-14; “Roundup“, Nov. 11; “Guest editorials“, Nov. 8; “Why doesn’t Windows cost more?“, Oct. 27; “Are you sure you want to delete ‘Microsoft’?“, Oct. 11; “The ‘we sue Microsoft’ business plan“, Aug. 31, 1999 (& update, Nov. 30, 2000). Archived personal responsibility items, pre-July 2003Tipple your way to court, 2003: “Shouldn’t have let him get so drunk” (Australia), May 12. 2002: “‘Woman freezes; sues city, cabbie’“, Sept. 18-19; “Wasn’t his fault for lying drunk under truck“, Aug. 16-18; “Hey, no fair talking about the pot” (highway rollover), Apr. 12-14; “European workplace notes” (employer responsible for vodka overdose), Feb. 25-26; “‘Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker’“, Feb. 25-26. 2001: “‘Teen hit by train while asleep on tracks sues railroad’“, Dec. 12; “‘Man suing after drunken driving crash’“, Aug. 20-21; “Don’t rock the Coke machine“, Jul. 20-22; “Court says tipsy topless dancer can sue club“, Jul. 3-4; “Jury: drunk driver hardly responsible at all for fatal crash“, Jun. 15-17; “It was the bar’s fault“, Apr. 13-15; “‘Court upholds workers compensation for drunk, injured worker’“, Apr. 6-8; “‘Woman who drove drunk gets $300,000’” (Ontario), Feb. 7-8 (& see Sept. 24, second case: $18 million); “‘All you can drink’ winner sues over fall“, Jan. 31-Feb. 1. 2000: “Zapped pylon-climber sues liquor-servers, utility“, March 6. 1999: “Personal responsibility wins a round” (judge rejects case from Pa. man who got drunk and climbed high voltage catenary), Sept. 17-19. “Should have watched his step answering call of nature“, Mar. 8-9, 2003. “Lightning bolt in amusement park’s parking lot“, Jun. 23, 2003; “‘Woman attacked by goose sues county’“, Jan. 27-28, 2003; “Quite an ankle sprain” (watch where you’re going in parks), Apr. 20-22, 2001. “MIT sued over student’s nitrous-oxide death“, Feb. 25, 2003; “By reader acclaim: ‘Parents file suit over student’s drug death’” (abuse of Oxycontin), Jul. 25, 2001. “Take care of myself? That’s the doc’s job“, Feb. 14-16, 2003; “Claim: docs should have done more to help woman quit smoking and lose weight” (Pa.), Sept. 18-19, 2002. “Satirical-disclaimer Hall of Fame” (Australian humor magazine), Oct. 28-29, 2002; “Tobacco: Boeken record” (The Onion parody), June 19, 2001; “Jury orders ‘Big Chocolate’ to pay $135 billion to obese consumers” (parody), Aug. 3, 2000; “This side of parodies” (fictional account of self-inflicted icepick injury), Oct. 5-6, 1999. Sports risks: “Sis-Boom-Sue” (cheerleading), Jan. 15-16, 2003; “Skating first, instructions later“, Sept. 25-26, 2002; “Pitcher hit by line drive sues maker of baseball bat“, Apr. 19-21, 2002; “Australian roundup” (Perth bodysurfer), Nov. 23-25, 2001; “Needed: assumption of risk” (baseball thrown into stands, skydiving), July 27-29; “‘Lawsuits could tame ski slopes’“, Feb. 6, 2001; “Promising areas for suits” (foul-ball cases and other stadium injuries), Dec. 7, 2000; “Teams liable for fans’ safety” (Colorado: hockey puck hit into stands), Aug. 15; “‘Skydivers don’t sue’“, May 26-29; “Trips on shoelace, demands $10 million from Nike“, April 7-9, 2000. Gambling: Letter to the editor, Oct. 23; “Personal responsibility roundup“, Sept. 12, 2002; “Sin-suit city“, Jun. 10; “‘Next tobacco’ watch: gambling“, May 20-21, 2002 (& May 31); “‘Gambling addiction’ class action” (Quebec), June 20, 2001. “‘Family of boy injured by leopard may sue’“, Jul. 18, 2002; “Skinny-dipping with killer whale: ‘incredibly bad judgment’“, Sept. 21, 1999 (Oct. 7 update: case dropped). “Wasn’t his fault for lying drunk under truck“, Aug. 16-18, 2002; “‘Win Big! Lie in Front of a Train!’“, Jun. 26-27, 2002 (& Jul. 12-14); “Australian roundup” (graffiti artist on train), Nov. 23-25, 2001; “Hit after laying on RR tracks; sues railroad“, Oct. 23, 2001. “‘Man awarded $60,000 for falling over barrier’“, Mar. 5, 2002. “Utah: rescue searchers sued“, Nov. 26, 2001. “Suit blames drugmaker for Columbine“, Oct. 24-25, 2001. “Mosh pit mayhem“, Sept. 7-9, 2001. “Urban legend alert: six ‘irresponsibility’ lawsuits“, Aug. 27-28, 2001. “Don’t rock the Coke machine“, Jul. 20-22, 2001. “Tobacco: Boeken record“, June 19, 2001. Stop having fun (children’s recreation): see schools page. “Tendency of elastic items to recoil well known“, Mar. 6, 2001. “By reader acclaim” (sues alleged crack dealers over own addiction), Jan. 11, 2001. “Smoker’s suit nixed in Norway“, Dec. 18-19, 2000; “Personal responsibility takes a vacation in Miami” (Engle tobacco verdict), July 8, 1999. “Highway responsibility” (Derrick Thomas suit), Nov. 28, 2000. “Fat tax proposed in New Zealand“, Oct. 31, 2000. “More things you can’t have: raw-milk cheeses“, Oct. 3, 2000; “More things you can’t have” (unpasteurized cider, New England square dances), Sept. 27, 1999; “More things you can’t have” (rare hamburgers, food sent to summer camp), August 9, 1999. “Smoking and responsibility: columnists weigh in” (after Florida verdict), Jul. 28-30, 2000. “‘”Whiplash!” America’s most frivolous lawsuits’” (book collects cases), Jul. 14-16, 2000. “Inmate: you didn’t supervise me” (horseplay alone in cell), Jul. 7, 2000. “Can’t sue over affair with doctor” (court rules it was consensual), Jun. 13, 2000. “Risky? Who’da thunk it?” (currency speculator sues over losses), Jun. 9-11, 2000. “‘Jury awards apparent record $220,000 for broken finger’” (hurt while dancing), May 22, 2000. “Videogame maker agrees to furnish safety gloves“, Mar. 13, 2000. “Letourneau scandal: now where’s my million?” (boy sues), Apr. 20, 2000. “All dressed up“, Apr. 19, 2000. “Down repressed-memory lane I: costly fender-bender” (eggshell-psyche plaintiff), Dec. 29-30, 1999. “Down repressed-memory lane II: distracted when she signed” (separation agreement), Dec. 29-30, 1999. “GM verdict roundup” (lawyers shift drunk drivers’ responsibility to automakers), Dec. 16, 1999; “Drunks have rights, too“, Dec. 1, 1999. “Rolling the dice (cont’d)” (Internet gambler sues credit card companies that advanced him money), Dec. 7, 1999; “Rolling the dice” (same), Aug. 26, 1999. “Responsibility, RIP” (columnist Mona Charen), Nov. 2, 1999. “The art of blame” (death of child left in hot van), Oct. 20, 1999. “Nominated by reader acclamation” (killer’s parents sue school district, lawmen for failing to prevent Columbine massacre), Oct. 18, 1999. “Block PATH to lawsuits” (fall out of tree in yard, sue your employer), Sept. 1, 1999. “To restore individual responsibility, bring back contract principles” (Cato Institute paper by Prof. Michael Krauss), Aug. 16, 1999. “Somebody might trip” (NYC condemns prints-of-the- Hollywood-stars sidewalk as slip hazard), Aug. 13, 1999. “All have lost, and all must have damages” (huge award to salesman who hawked bad insurance policies since he’s a victim too), Aug. 3, 1999. Through much of American history, courts discouraged lawsuits arising from risks that individuals were deemed to have assumed in the course of going about familiar activities, such as the risk of being thrown while horseback riding, of slipping on toys underfoot while visiting a house with children, or of being hit with a foul ball while attending a ball game. (Stored search on “assumption of risk”: Google, Alta Vista). Under the doctrine of “contributory negligence”, they often dismissed, as a matter of law, cases where a complainant’s own negligence had helped cause an accident. They were even less likely to entertain cases in which someone’s knowing or deliberate dereliction had placed him in physical peril, such as cases in which people sue over injuries sustained in the course of committing crimes or attempting suicide. And finally, they gave broad respect to express contractual disclaimers or waivers of liability: if a party was on notice that the other side in a transaction wasn’t willing to assume a responsibility, it wouldn’t be easy to tag them later with that responsibility in court. By the 1950s all these old barriers to liability had come under sustained attack in the law schools, where they were viewed as insulating defendants’ misconduct from legal scrutiny and impeding the forward march of liability law as a (high-overhead) variety of social insurance. Most states moved from contributory negligence to comparative negligence, which allows a plaintiff whose negligence helped cause an accident to sue over it anyway, though for a reduced recovery. Waivers and disclaimers began to be struck down as unconscionable, against public policy, not spelled out with sufficient clarity, etc. And assumption of risk was whittled down by way of a dozen techniques: the most influential torts scholar of the postwar period, William Prosser, took the view that “that implied reasonable assumption of risk should not be allowed to reduce a plaintiff’s damage in any way” (Chase Van Gorder, “Assumption of Risk Under Washington Law“). The result is today’s American legal environment in which plaintiffs routinely try their luck at suits after being injured climbing high-voltage utility structures while drunk, skinny-dipping in icy pools with captive killer whales, trying “wheelies” and other stunts on industrial forklifts, and smoking for decades. Some of these suits succeed at obtaining settlements while others fail, and it’s important to bear in mind that assumption of risk and related doctrines have not disappeared entirely. Their general decay, however, has been important in bringing us today’s hypertrophy of such areas of law as premises liability, product liability and recreational liability. The website of attorney D. Pamela Gaines has useful resources on assumption of risk as it applies to such areas as premises liability, recreation and amusement parks. At the International Mountain Bicycling Association site, Tina Burckhardt explains “recreational use statutes” which grant some protection from liability lawsuits to landowners who allow free recreational use of their property. Archived mold items, pre-July 2003Archived entries before July 2003 can also be found here. 2003: “Mold — to the highest bidder!“, Jun. 23. 2002: “‘Doctors find no evidence of mold as a toxic disease’“, Sept. 23; “Judge questions ‘shotgun’ naming of 282 defendants in trailer-mold case“, Aug. 21; “The rewards of growing mold together“, May 9; “Mold sweepstakes: You May Already Be a Winner“, Apr. 25 (& update May 21, 2003). 2001: “Plastic cup blamed for child’s autism“, Apr. 9; “Mold wars, cont’d“, Mar. 2-4. 2000: “Spread of mold law“, Oct. 10. Archived intellectual property items, pre-July 2003Archived entries before July 2003 can also be found here. “Next: Mercedes sues Merced, Calif.” (Volvo v. Volo Car Museum), Jun. 24; “‘Illegal art’“, Feb. 13; “We own e-commerce“, Feb. 4-5. 2002: “Using his own name a legal risk” (Bill Wyman), Dec. 13-15; “Macaulay on copyright law“, Oct. 14; “Skittish at Kinko’s” (won’t make copies of customer’s own published writing), Jul. 26-28; “Stolen silence?” (John Cage composition), Jul. 19-21; “Law blogs“, Jul. 3-9; “‘Top ten new copyright crimes’” (satire), Jun. 3-4; “‘A fence too far’” (Hollings bill), May 20-21; “ReplayTV copyright fight“, May 6; “A DMCA run-in” (linking to copyright violation), Apr. 16-17; “Intel Corp. versus yoga foundation“, Apr. 1-2; “Web speech roundup“, Mar. 25-26; “I’ve got a legally protected bunch of coconuts“, Mar. 13-14; “British Telecom claims to own hyperlinks“, Feb. 13-14 (& Oct. 1-2); “Overlawyered film sets“, Feb. 8-10; “‘”Let’s Roll” Trademark Battle Is On’“, Feb. 4-5 (& Feb. 11-12); “‘Aborigines claim kangaroo copyright’“, Feb. 1-3. 2001: “Bioterror unpreparedness” (antibiotic Cipro), Nov. 28; “Byways of IP law” (cat-walker patent), Nov. 7-8; “‘Mother of all copyright battles’” (Sesame Street v. Osama bin Laden?), Oct. 15; “Radio daze” (service mark), Aug. 31-Sept. 2; “‘Trolling for dollars’” (patent enforcement), Aug. 29-30; “‘Jailed under a bad law’” (DMCA, Sklyarov case), Aug. 27-28; “‘Girl from Ipanema is sued over the song she inspired’“, Aug. 15; “‘Melbourne man patents the wheel’“, Jul. 24; “Stories that got away” (DMCA), July 23; “Domain- name disputes are busting out all over“, June 29-July 1; “Barney’s bluster“, Jun. 25 (& “Welcome Slashdot readers“, July 5); “Mich. lawyer’s demand: get my case off your website” (“Love Your Neighbor”), Jun. 20 (& letter to the editor, July 6); “Intellectual- property dispute Hall of Fame” (dueling bra balls), June 6; Maori tribes v. Lego“, June 4; “‘Gone with the Wind’ parody case“, May 25-27; “Fortune on Lemelson patents“, May 10 (& see Feb. 11-12, 2002; Jan. 19-21, 2001 (checkout scanners); Aug. 28-29, 1999); “Value of being able to endure parody without calling in lawyers: priceless” (MasterCard), April 25; “Patenting the Web?“, April 3-4; “Trademark litigation hall of fame” (“Love Your Neighbor” vs. “Love Thy Neighbor”), April 3-4; “Scientologists vs. Slashdot“, March 19-20; “Can you own common words?“, Mar. 7-8; “‘Top jury awards soar in 2000’” (IP leads trend), Feb. 23-25; “By reader acclaim: patented PB&J“, Jan. 30 (& letter to the editor, Feb. 12, discussion in columns, May 1); “Someone might get confused” (Pillsbury claims infringement from tech engineers’ use of “bake-off”), Jan. 22-23; “In the gall department” (Napster sues alleged trademark infringer), Jan. 11. 2000: “Judge shopping, cont’d” (Rambus vs. Hyundai), Nov. 16; “CueCat’s legal claws“, Oct. 20-22; “Web-copyright update: ‘Dialectizer’ back up, ‘MS-Monopoly’ down“, Aug. 16-17; “eBay yanks e-meter auctions” (copyright claim), May 3; “Furor just one click away” (Amazon patent), March 21. 1999: “More assertions of link liability” (DVD hack), Dec. 31; “For this we gave up three months of our lives?” (jury hears abstruse patent dispute), Oct. 20; “Copyright and conscience” (goodbye to “Dysfunctional Family Circus”), Oct. 7. Archived animal rights items, 1999-June 2003Archived entries before July 2003 can also be found here. 2002: “Suit: schoolkids shouldn’t attend rodeo“, Oct. 24; “Officious intermeddlers, pet division” (chimps; lawyers intervene in divorces on behalf of couple’s cats and dogs), May 14-15; “Zoo asserts animals’ ‘medical privacy’“, May 8; “Lawyers for chimps?“, Apr. 29-30; “‘PETA Says It Will Sue New Jersey Over Deer/Car Accident’“, Feb. 25-26; “All things sentimental and recoverable“, Jan. 30-31. 2001: “‘North America’s most dangerous mammal’” (deer), Nov. 29; “Fight over dog’s disposition said to cost taxpayers $200K“, Nov. 21-22; “Harvard Law’s new Bob Barker program in animal rights“, Jul. 5. 2000: “Lab mice paperwork“, Oct. 26; “European roundup” (Swiss animal-rights initiative), Oct. 16-17; “‘Parody of animal rights site told to close’“, Jul. 3-4; “Compare and contrast: puppy’s life and human’s“, Jun. 22-25; “Suits by household pets?“, May 26-29; “From the dog’s point of view“, Feb. 8-9; “Down, attorney! Down!“, Feb. 1; “Weekend reading: columnist-fest” (Laura Pulfer on animal rights), Feb. 5-6. 1999: “Got milk? Get sued” (veggie lawsuit against milk in schools), Dec. 16; “Wide world of federal law enforcement” (“crush video” ban), Oct. 16-17; “Not just our imagination” (class action against “Big Meat”?), Sept. 25-26; “Polly in Margaritaville” (felony defendant charged with getting parrot tipsy), Aug. 2. Archived auto items, pre-July 2003Leasing liability: “‘Silver’s wreck’“, Jun. 9, 2003; “Auto-lease liability: deeper into crisis“, May 21; “‘Automakers may stop leasing vehicles in N.Y.’“, Mar. 12-14, 2003; “R.I.: No more cheap car leases?“, Aug. 26, 2002. “Steering the evidence” (DaimlerChrysler gets sanctions against lawyers for evidence and witness tampering), May 23, 2000 (& updates Jun. 26, 2000, Mar. 17, 2003). “‘The Lawyers Are Lurking Over S.U.V.’s’“, Jan. 9, 2003. “Ford didn’t push pedal extenders, suit says“, Feb. 27-28, 2002 (& letter to the editor, Apr. 11). “‘Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker’” (VW), Feb. 25-26, 2002. “Chrysler dodges a $250 million dart“, Dec. 7-9, 2001; “Miami jury to Ford: pay $15 million after beltless crash“, Sept. 24, 2001. “Disclaimer rage?” (GPS software), Oct. 15, 2001. “When trial lawyers help redesign cars” (Thornburgh on GM trucks), Aug. 6, 2001. Airbags: “‘Airbag chemical on trial’“, Aug. 14, 2000; “Deflated“, May 16, 2000; and see Oct. 20-22, 2000 (Henry Payne cartoon). “Drive 60K miles, collect $273K“, Jan. 9, 2001; “Tales from the tow zone” (verdict against Chrysler), Oct. 31, 2000. “Highway responsibility” (GM sued in Derrick Thomas speeding-on-ice crash), Nov. 28, 2000. “Product liability criminalized?“, Oct. 20-22, 2000. “Target Detroit” (mass litigation; S.U.V.’s; class action firm countersues DaimlerChrysler and exec personally), Jul. 19-20, 2000; “Turning the tables” (DaimlerChrysler sues class action lawyers), Nov. 12, 1999. “Nader on the Corvair“, July 13, 2000; “Nader, controversial at last“, June 13, 2000; “Deflated“, May 16, 2000. “Sudden deceleration” (NHTSA rejects petition for sudden-acceleration probe), Jun. 6, 2000. “‘Saints, sinners and the Isuzu Trooper’“, April 14-16, 2000; “Verdict on Consumer Reports: false, but not damaging” (Isuzu v. Consumers Union), Apr. 10, 2000. “$65 million Texas verdict: driver at twice the legal blood limit” (drunk driver’s estate sues Honda over seat belt), Mar. 28, 2000. “‘Motorists speed more, but fewer die’“, Feb. 19-21, 2000. “GM verdict roundup” (Anderson v. General Motors fallout continues), Dec. 16, 1999; “L.A. judge cuts award against GM to $1.2 billion“, Aug. 27, 1999; “In L.A., redesigning the Chevy” ($5 billion Malibu gas tank verdict), Jul. 10, 1999 (& see update Aug. 3, 2003, case settled on undisclosed terms). “Toshiba and Ford, in the same boat“, Dec. 2, 1999. “‘Wretched excesses of liability lawsuits’” (David Boldt, Philadelphia Inquirer), Nov. 29, 1999. “Responsibility, RIP” (columnist Mona Charen), Nov. 2, 1999. “Zone of blame” (policeman shot in his cruiser, automaker sued), Oct. 27, 1999. “Rhode Island A.G.: let’s do latex gloves next” (speed governors on cars), Oct. 26, 1999. “The art of blame” (Ford sued after child left in parked van in sun dies of overheating), Oct. 20, 1999. “Demolition derby for consumer budgets” (class action against State Farm over generic crash parts), Oct. 8, 1999. “Yes, it is personal” (automotive engineers take design-defect suits as personal accusations), Oct. 7, 1999. “Too many games at GM?” (Atlanta ruling on Ivey memo controversy), September 10, 1999. “Do as we say (II): gun-suit hypocrisy in Detroit” (gun- and automakers both sued after criminal misuse of their products), Aug. 30, 1999. [additional essay on auto design liability here] Archived probate and estate law items through June 2003Archived entries on probate/estate law before July 2003 can also be found here. 2003: “Probate’s misplaced trust” (Washington Post series), Jun. 16-17. 2002: “Lawyers swallow lion’s share in estate dispute” (Australia), Feb. 18-19. 2001: “New York guardianship scandals“, Dec. 20 (& Jan. 12, 2000); “‘Lawyers pay price for cruel hoaxes’” (phony heirs), Aug. 3-5 (& Nov. 29, 2000, Apr. 10, 2001); “Estate law temptations“, Jul. 6-8; “Write a very clear will” (Jerry Garcia, James Mason, H.J. Lutcher Stark), May 14. 2000: “$1.5 million estate bill included 900 hours spent on fees“, Sept. 8-10. 1999: “Weekend reading: evergreens” (St. Petersburg Times Pulitzer series), Dec. 3-5; “From the evergreen file: L.A. probate horror” (estate of art collector Fred Weisman), Nov. 20-21; “Weekend reading: evergreens” (Denver probate nightmare), Oct. 23-24; “State of legal ethics” (lawyers advertise to stir up will-contest litigation), Oct. 5-6. Archived advertising and solicitation posts through June 2003“New Orleans cleanup continues“, Jun. 10-11, 2003. “Mississippi investigation heats up“, May 7, 2003; “‘Oxy Morons’“, May 30, 2002; “Trial lawyers vs. OxyContin“, Aug. 7-8, 2001; “Target: Alka-Seltzer” (phenylpropanolamine, PPA), April 6-8, 2001 (& Dec. 18, 2001). “‘Streets strewn with glass, gold’“, May 4-5, 2003. “Thrill of the chase“, Mar. 4, 2003. “Client-chasing: we interrupt your grief“, Feb. 21-23, 2003. “Client-chasing: tantrum-enablers“, Feb. 21-23, 2003. “Politico’s law associate suspended over ‘runner’ use” (Louisiana), Feb. 14-16, 2003. “Targeting Wall Street“, Jan. 30, 2003. “Lawyers’ advertising, 25 years later“, Dec. 23, 2002. Websites, 2003: “Slip, fall, learn who to blame“, Feb. 4-5. 2002: “Trial lawyers vs. Thimerosal“, Dec. 20-22; “Sic ’em on Segway“, Aug. 1; “Jury nails ‘The Hammer’” (MillionDollarLungs.com, CPalsy.com), Jun. 17-18. 2001: “Trial lawyers vs. OxyContin“, Aug. 7-8; “Letter to the editor” (fallingmerchandise.com), May 18. 2000: “Down, attorney! Down!” (dogbitelaw.com), Feb. 1. 1999: “‘Some lawyers try to make nice’” (Egypt Air 990), Nov. 29; “Click here to sue!” (AOL volunteers), Sept. 7; “Click here to sue!” (“employee misclassification”), Aug. 19. “After our own heart” (coach attacked by fans solicited to sue baseball club), Sept. 27-29, 2002. “Patriotic, or promotional?” (billboard), Sept. 13-15, 2002. “Jury nails ‘The Hammer’” (jury finds lawyer’s ads false and misleading in legal-malpractice case), Jun. 17-18, 2002. “‘Friends don’t let friends plead guilty’” (lawyer’s slogan), May 13, 2002. “The lawyers who invented spam“, Mar. 29-31, 2002. “Texas docs plan walkout”, Mar. 15-17, 2002; “A ‘Jenny Jones Show’ question“, Mar. 12, 2002; “For client-chasers, daytime TV gets results“, Dec. 18, 2001. “‘Halliburton shares plunge on verdict’” (“million dollar lungs”), Dec. 10, 2001. “Profiling perfectly OK after all” (ACLU billboard solicits racial profiling plaintiffs), Nov. 16-18, 2001. “U.S. Muslims told: don’t talk to law enforcement” (by lawyer promoting his services), Oct. 29, 2001. “‘Company tried to capitalize on Sept. 11’“, Oct. 15, 2001. “Meet the ‘wrongful-birth’ bar“, Aug. 22-23, 2001. “‘Lawyer says Yellow Book ad makes him look bad, sues for damages’“, July 3-4, 2001; “Let your fingers do the suing” (Michigan’s “AAAA Legal Center“), Feb. 17, 2000; “The Yellow Pages indicator“, Oct. 9-10, 1999. “‘Insect lawyer ad creates buzz’” (Canadian law firm’s recruitment ad), May 23, 2001. “From dinner party to court” (U.K.), May 22, 2001. “Letter to the editor” (law firm “consumer columns”), May 18, 2001. “Behind the subway ads” (1-800-DIVORCE, etc.), Dec. 18-19, 2000. “Scarier than they bargained for” (“grenades” sent as promotion), Oct. 5, 2000. “Press releases, or ‘strike suit’ ads?” (announcements of securities lawsuits), March 6, 2000. “‘Ambulance chaser’ label ruled defamatory” (appeals court says lawyer can sue), Jan. 24, 2000. “Free expression, with truth in advertising thrown in?” (injury lawyer flies Jolly Roger pirate flag), Dec. 31, 1999-Jan. 2, 2000. “Pack your toothbrush, son” (Alabama: charges of paying hospital, police employees for leads on cases), Dec. 20, 1999. “‘Some lawyers try to make nice’” (Ohio Bar ads), Nov. 29, 1999. “State of legal ethics” (ad stirring up will-contest litigation), Oct. 5-6, 1999. “Mass. high court opens lawyer-ad floodgates“, Sept. 17-19, 1999. “Like calling the Orkin man to talk about bugs” (Johnnie Cochran 18-page promotional bio at A.B.A. convention), August 10, 1999. “Honey, you’ve got mail” (Florida divorce-lawyer solicitations arrive before clients know they’re being divorced), July 15, 1999. “What a recommendation” (O.J. Simpson to cut TV ads for 1-800 lawyer referral service), July 6, 1999; see also Dec. 8-10, 2000 (Fla. battle over lawyer TV ads). “This time, bombing the taxpayer” (controversy over American attorney John Burris’ recruitment of embassy-bombing victims), Jul. 5, 1999. (More resources on same episode: Mike Kelly, Bergen Record, Apr. 18, 1999; Newsweek International, Apr. 12, 1999, links now dead.) The annotated external links formerly present on this page are now here. About auto litigation (1999)Archived entries before July 2003 can be found here, where the following brief essay originally appeared: The finest achievement of American trial lawyers, to hear many of them tell it, has been their success in identifying unsafe models of automobile and forcing them off the road. The Ford Pinto case is invariably put forth as an example of how a big company knowingly designed and sold an obviously defective vehicle for which it was properly chastised by means of large jury awards. (Ralph Nader has promised to put a Pinto exhibit in his proposed Museum of American Tort Law.) Almost as well known has been litigation over claims of “sudden acceleration” in Audi 5000s, in which the German-made sedans were said to dart inexplicably out of control even though their owners were pressing the brake pedal with all their might. To be sure, the Audi case presents an inconvenient complication, namely that the cars weren’t inexplicably accelerating — a series of conclusive government investigations found that the drivers were in fact mistakenly pressing the accelerator thinking they were on the brake. Likewise with the controversy over “sidesaddle” gas tanks on some GM full-size pickup trucks, said to be inexcusably unsafe in side-impact collisions but revealed in real-world crash statistics to be considerably safer than the average vehicle on the road (which did not keep lawyers from winning at least one huge verdict against them). Trial lawyers offer up the auto safety issue to public audiences and juries as a simple, satisfying morality play of wicked automakers versus helpless victims. It is seldom clear, however, what they would consider to be adequate safety performance. Every mass maker of vehicles for the U.S. market — even Volvo, even Lexus, even BMW — has faced lawsuits in American courts alleging that its designs are impermissibly unsafe. The explanation is not that all models are defectively designed, but that drivers of all models get into accidents — and when crash victims’ injuries are serious and the other driver underinsured, lawyers will often stretch quite a ways to find some theory or other that allows them to pull in the maker of the car as a defendant. Many such theories are available because auto design is a complex subject, because the circumstances in which accidents take place are often factually muddled and open to dispute, and because the design of all vehicles, even the full-size Mercedes, involves trade-offs between safety vs. expense, safety vs. convenience/enjoyment, and safety vs. safety (protecting passengers from front impacts versus protecting them from side impacts, for instance). But some trial lawyers seem to be willing to get up in front of a jury and downplay even well-known, longstanding safety trade-offs in vehicle design — such as the greater rollover hazard that drivers face in convertibles and in off-road vehicles with high ground clearance — in favor of the theory of a sinister conspiracy in executive suites to kill customers. ——————————————————————————– The Audi case is written up at length in Chapter 4 of Peter Huber’s magisterial Galileo’s Revenge: Junk Science in the Courtroom (Basic Books, 1991), which is not online but is available through the Overlawyered.com bookstore. It is also discussed more briefly in his article “Junk Science in the Courtroom“. A short but vivid account appears in P. J. O’Rourke’s humorous account of the workings of government, Parliament of Whores (Atlantic Monthly Press, 1991, pp. 86-87). The notorious “60 Minutes” show attacking the Audi comes in for a drubbing in our editor’s 1993 National Review expose of dubious crash journalism, “It Didn’t Start With Dateline NBC“, adapted and reprinted in The Rule of Lawyers, and is the subject of a valuable retrospective in the August 1998 Brill’s Content by Greg Farrell (“Lynched: Lurching Into Reverse”), which in turn provoked a fairly hysterical response from CBS executives. In 1993, “Dateline NBC” was caught in one of the great television scandals of all time: filming a supposed “crash test” of a GM full-size pickup being hit and bursting into flames without telling viewers that the truck had been rigged with hidden incendiary devices and tampered with in various other ways to make a fire more likely. But in fact TV newsmagazines had been running highly dubious “crash test” footage for many years; the main difference was that in this case NBC happened to get caught. In the Dateline case, as in many previous instances of fakery, the network was guided and advised by crash “experts” who happened simultaneously to be working for the plaintiff’s lawyers in suits over the defects being alleged in the TV coverage. Not by coincidence, NBC aired its bogus report not long before an Atlanta jury was to hear a major liability suit against GM, the target of the show; they proceeded to vote an award of $105 million. Overlawyered.com’s editor weighed into the controversy with pieces on the truck’s safety record (“‘The Most Dangerous Vehicle on the Road’“, Wall Street Journal, February 9, 1993), on the media’s reliance on plaintiff’s experts (“Exposing the ‘Experts’ Behind the Sexy Exposes“, Washington Post, February 28, 1993), and on the earlier history of questionable crash-test journalism at American networks (“It Didn’t Start With Dateline NBC“, National Review, June 21, 1993). On the Ford Pinto case, the best resource is In July 1999, rekindling a public debate about the irrationality of jury decisions in product liability cases, two California juries returned enormous verdicts within three days of each other: a Los Angeles jury voted $5 billion against GM for the allegedly defective design of its 1979 Chevrolet Malibu, and a jury in rural Ceres, Cal. returned a $290 million verdict against Ford in a case against its Bronco truck. The cases are discussed on Overlawyered.com in the entries for July 10, August 27 and September 10 (GM) and August 24 (Ford). In the General Motors case, plaintiffs successfully prevented GM from telling the jury that the accident had been caused by a drunk driver who had been convicted of a felony and imprisoned over the accident; or that the Malibu’s real-life crash statistics showed it to be safer than the average car of its era; or that the alternative crash design proffered by plaintiffs raised safety concerns of its own and was not widely used by other makers. In the Ford case, a long series of emotionally manipulative trial tactics by the plaintiff’s lawyers paid off when one juror told her colleagues that the reason they had to vote for liability had come to her in a dream. In April 2000, after a two-month trial, the tables were turned when a federal jury found that the magazine Consumer Reports, frequently aligned with the trial-lawyer side in legislative fights, had made numerous false statements in its October 1996 cover story alleging a dangerous propensity to roll over in the 1995-96 Isuzu Trooper sport utility vehicle, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had conducted itself arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but couldn’t see their way to overcoming the high threshold to proving “malice”. The jury found eight statements in the article false, but in only one of these did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered. |