Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Snopes’

Food safety law and small producers, cont’d

My post last week on a bill that would greatly expand federal food safety law, and the dangers it could pose to small producers, drew a large number of readers, especially from Andrew Sullivan’s link; some other notable mentions and reactions include Rod Dreher, Nick Gillespie @ Reason “Hit and Run”, Hans Bader and more, John Phipps/Incoming, and Vines and Cattle.
Fluffy and insubstantial?
At the same time, bill sponsor Rep. Rosa DeLauro (D-Ct.) and allies continue their efforts to dismiss alarm about possible effects on small producers as just hysteria whipped up from nothing, a trope that Patrick at Popehat has a bit of fun with. DeLauro has given interviews along these lines in recent days to the Hartford Courant and Huffington Post. Meanwhile, Factcheck.org criticizes untruths and hyperbole about the bill found in a widely sent chain email, most of which is fair enough — lots of misinformation is being circulated — but can’t resist a bit of Snopes-like over-reassurance about the law’s supposed general innocuousness. (Incidentally, for those who keep track of such things, oft-accurate FactCheck.org has just conferred its seal of approval on oft-accurate Snopes.com. Everyone can feel better now.)

Meanwhile, the Wall Street Journal reports (blog summary) that Pennsylvania is cracking down on women who prepare home-baked pies for church fish fries without arranging for a license and state inspection access to their kitchens. Back away slowly from that pie, ma'am Little in the story is surprising to those who’ve followed our coverage over the years of similar controversies over pies in Connecticut, cupcakes in Massachusetts, cookies in Maine, county-fair jams in Virginia, and church potlucks in Indiana. All these instances of regulation, one might note, were at the hands of state and local governments, which are widely reputed to be more easily reached by irate constituents and less likely to regulate with a heavy hand than the feds in Washington.

More to come later, including an effort to sort out the confusion over what H.R. 875 as currently written exempts (e.g., many direct farm-to-consumer transactions) and what it does not exempt (lots and lots of other small and local transactions).

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CPSIA: “What’s so sad is that books aren’t dangerous”

Excellent article today on libraries, books and CPSIA in one of Texas’s leading newspapers, the Fort Worth Star-Telegram. twolittleantsIt confirms, among other things, that the big Half Price Books chain has made a policy of pulling pre-1985 books from its shelves, as well as more recent books that contain various kinds of embellishments and special features. If you happen to know an editor with the New York Times, the Chicago Tribune or one of the other big media outlets that are still utterly ignoring the crisis, this makes a good clip to send them, just to let them know that 1) what’s going on is only too real; and 2) they’re being scooped repeatedly by other journalists, just as the Boston Globe scooped them last week on the resale story.

Also on the library issue, there is good coverage in the Zanesville, Ohio Times Reporter (a disproportionate amount of the good library coverage has come from the state of Ohio, which I suspect must be a tribute to some energetic library people there). The American Library Association has a wiki reiterating (at present) that association’s advice to members not to throw out pre-1985 books: “If you feel you must remove books from circulation, please store them until rulings are clearer!”. In her latest roundup, Deputy Headmistress describes how her own local library is boxing up many books that are likely to have been printed after 1985, because their copyright date falls before then; it is a common practice for children’s books to list only a copyright date even if they were printed many years later. So at that cautious library, at least, the law’s effects are even more drastic than one might have assumed.

Darwin Central, which took out after the offending Snopes.com on the books issue a couple of weeks ago, follows up today with a post entitled, “Snopes Defending the Book Burners”. poppyseedcakeLinda L. Richards at January Magazine was among those misled by the Snopes slant. In a wide-ranging CPSIA roundup last month (worth reading in its entirety), Punditry by the Pint had wise advice: “This might be one of the cases where it would be good to read up on Snopes’ False Authority Syndrome page.” A visit to the Snopes page in question indicates that it now carries a “Last Updated” date of February 19, which indicates that it has been changed since we last had occasion to discuss it; at a brief glance, some of the dismissive language I and others found so objectionable seems no longer to be there, though it has not been replaced by language that’s actually cogent or up-to-date. Someone might want to do a before-and-after comparison using the Wayback Machine.

Also on books, children’s book author and editor Carol Baicker-McKee has a lovely followup to her excellent post of a day earlier, describing some of the kinds of older children’s books (of uncertain copyright status, too “quiet” in their themes to attract reprint interest from publishers) that might face a bleak future. She admires silhouette art, a feature of many midcentury children’s books (like the 1941 Marcella Chute volume from which this illustration is taken) but which is uncommon today.
silhouette
Baicker-McKee has devoted more thought to the economics of children’s publishing than have most of us, and she writes beautifully of what is at risk. Ed Driscoll also has some to-the-point observations at Pajamas Media, where he quotes Mark Steyn: “A nation’s collective memory is the unseen seven-eighths of the iceberg. When you sever that, what’s left just bobs around on the surface, unmoored in every sense.”

There are other news stories I haven’t gotten to — in particular, the Wall Street Journal’s important reporting on $1 billion-plus (at least) in stranded inventories, much of which may be headed for landfills, and the news of the sudden 40% drop in the stock price of well-known kids’ retailer Gymboree as it was forced to take massive inventory write-offs. I’ll have to get to those at a later date, however, as an unrelated deadline is going to be absorbing much of my attention over the next few days.

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CPSIA chronicles, February 19

StrongerWhenLinked

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Snopes and CPSIA

How wrong — and how seemingly unembarrassed about being wrong — is the popular urban-legends site? After I raised the question on Friday, reader Meredith Wright wrote the site and got a highly unsatisfactory response, which I’ll reprint here (and have also printed in comments):

Comment (MW): First of all, I LOVE your website, and usually find it well-sourced. But your inboxer article on CPSIA is just incorrect. CPSIA is a poorly written law (and apparently a poorly READ law – most of the representatives and senators who voted for it never bothered to read it – kind of like the PATRIOT Act), but it IS going to impact a LOT of people who shouldn’t have to suffer, mostly small business owners and LIBRARIES.

Go to Overlawyered.com and check it all out. I have no ax to grind here
(although my representative is Waxman, one of the morons who wrote this stupid bill) and just want you to take a look at the other side of the
issue. At the very least, your article should be labeled “undetermined” not “false.”

Kind regards,
Meredith Wright

And the response:

From: snopes.com [email redacted]
Subject: Re: snopes.com: Page Comment
To: Meredith Wright [email redacted]
Date: Friday, February 13, 2009, 6:43 PM

It’s covered in our FAQ at http://www.snopes.com/info/faq.asp

Many of the texts we discuss contain a mixture of truth, falsity, and exaggeration which cannot be accurately described by a single “True” or “False” rating. Therefore, an item’s status is generally based upon the single most important aspect of the text under discussion, which is summarized in the statement made after the “Claim:” heading at the top of the page. It is important to make note of the wording of that claim, since that is the statement to which the status applies.

Urban Legends Reference Pages
http://www.snopes.com


* * *

So [this is W.O., editorializing, now, not Snopes or Wright] it doesn’t matter how often people read the Snopes item and conclude that the alarms over resellers and CPSIA are unfounded, hysteria, far-fetched, etc. The posting was narrowly accurate when it came to refuting one particular false sub-rumor, and so there’s no need to apologize for, let alone correct, the dismissive tone and poorly informed opinionizing on prospects for enforcement that led many readers into a wider and more serious error, namely thinking that children’s resellers who don’t “blatantly take a cavalier attitude” about customer safety would have no trouble living with the law’s requirements. If you believed Snopes on that, you would have been grossly unprepared for the convulsions in the children’s resale business that began making headlines in recent days.

Incidentally, for those keeping score, the Snopes entry gets other facts about the law wrong too. For example, it announces that “children’s products made after [emphasis added] February 10, 2009″ face lead certification requirements. This was not true either before or after the CPSC’s 11th-hour stay of certification enforcement: it was and is the date of sale or distribution, not of manufacture, that triggers the requirements. A small maker or dealer relying on the Snopes piece might have concluded that its pre-2/10 stocks were not affected by the certification controversy — big, big mistake.

(Public domain image: Grandma’s Graphics, Margaret Tulloch).
More research next time please

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Responses to comments on yesterday’s McDonald’s coffee posts

Several comments on yesterday’s post merit responses.

1. One commenter invokes the Ford Pinto case, which is interesting because that’s perhaps the most famous anti-reform urban legend of all. He mistakenly says that Ford’s problem there was undervaluing human life (though the figure in the memo merely repeated the NHTSA number), but, in reality, the plaintiffs sought and obtained punitive damages because Ford performed a cost-benefit calculation at all. Any manufacturer caught performing the cost-benefit calculation that the commenter believes reflects the tort system operating at its most efficient is going to be accused of “putting profits before people” and undervaluing human life, and is at severe risk of being hit with punitive damages unless the judge or jury is unusually economically literate.

2. I’m not saying the court should have thrown the case out because of the factual dispute. The jury made the wrong decision on the facts, but the judge made the wrong decision on the law: see McMahon v. Bunn-O-Matic and the dozen or so cases throwing identical theories out.

3. I agree that it’s not enough to look solely at the costs of the tort system, and that one must look at the benefits also. I don’t oppose the tort system as a whole, but there are certainly problems with the tort system that can be improved to increase the benefits while decreasing the costs. The McDonald’s case illustrates several of these problems: (a) bogus expert testimony; (b) the distorting effect of punitive damages, especially when punitive damages in a products liability case is based on the defendants’ sales, rather than the defendants’ conduct; (c) the erosion of the concept of proximate cause from the tort system; and (d) the erosion of the concept of personal responsibility from the tort system; (e) the backwards-looking “failure to warn” cause of action; (f) the system’s unscientific rejection of concepts of statistical significance.

This would be bad enough if the case was simply an outlier, a case where bad luck, a bad judge, a bad jury, and defense mistakes combined to create a wrong result, but ATLA and law professors are holding up this case as a good result, and there’s a generation of law students who mistakenly think that this is what the tort system should aspire to.

4. I mentioned Snopes.com in the post; they appear to have taken down their original McDonald’s coffee page. I’ve changed the link from the main Snopes page to a different post discussing the “Stella Awards” (which we debunked August 27, 2001). There, Snopes.com repeats the claim that the McDonald’s coffee lawsuit was legitimate, and furthers the urban legend that there’s a sinister force behind the Stella Awards—a curious claim, given that the Mikkelsons’ experience with urban legends has surely taught them that no right-wing conspiracy is needed to result in the spreading of a good yarn that isn’t true. (See also Aug. 14.) In contrast, ATLA affirmatively promotes urban legends about the Ford Pinto and McDonald’s coffee case on their page.

5. Side note about an irony of the Ford Pinto case: the litigation was sold to the American public as a godsend because Pintos were so dangerous that their gas tanks killed a thousand or more. Gary Schwartz added up the numbers, and discovered that only 28 people died in Ford Pinto fuel-fed fires—a rate lower than many other small cars. ATLA shamelessly uses the new number to exclaim that current product manufacturing snafus are “worse than the infamous Ford Pinto,” which is, of course, infamous only because of the successful propaganda of the trial bar.

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Urban legends and Stella Liebeck and the McDonald’s coffee case

Thirteen courts have reported opinions looking at product-liability/failure-to-warn claims alleging that coffee was “unreasonably dangerous” and the provider was thus liable when the plaintiff spilled coffee on him- or herself. Twelve courts correctly threw the case out. Another trial court in New Mexico, however, didn’t, and became a national icon when the jury claimed that Stella Liebeck deserved $2.9 million in compensatory and punitive damages because McDonald’s dared to sell the 79-year-old hot 170-degree coffee.

The case is ludicrous on its face, as a matter of law and as a matter of common sense. Eleven years later, this should be beyond debate, yet somehow, it keeps coming up in the blogs, and we keep having to refute it. (Dec. 10, 2003, Aug. 3, 2004, Aug. 4, 2004).

Amazingly, rather than argue that the tort system shouldn’t be judged by the occasional outlier, the litigation lobby has succeeded in persuading some in the media and on the left that the Liebeck case is actually an aspirational result for the tort system, and, not only that, but that anyone who says otherwise is just a foolish right-winger buying into “urban legends” (Aug. 14, Aug. 16, and links therein). Even the Mikkelsons at snopes.com have made the mistake of buying into the trial lawyer hype, calling the case “perfectly legitimate” and effectively classifying the common-sense understanding of the case as an urban legend.

But the real urban legend has to be that the case has any legitimacy. Worse, this urban legend is being taught to a generation of law students by professors like Jonathan Turley and Michael McCann. Now, any peripheral mention of the McDonald’s coffee case provokes a gigantic backlash from the left, who, while congratulating themselves on their seeing past the common-sense view of the case and being above urban legends, spread a number of urban legends of their own about the case. Witness the 200-plus comment outpouring at Kevin Drum’s Political Animal blog. This post provides a partial rebuttal to some of the things said in that thread, and will hopefully serve as a FAQ in the future.

Read On…

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Winnebago/Stella Award myths, pt. 4

Reader Gerald Affeldt writes:

I first heard a version of the “Winnebago cruise control” story while I was in the Navy stationed at Whiting Field in Milton, Fla. in 1977. And I’ve heard different versions of it over the years.

The earliest version I heard, as well as a number of later versions, had an ethnic angle. At the time, the U.S. Navy was training pilots for the Shah of Iran, and what with language and customs difference, the trainees weren’t considered technically acute. So the first version of the story I heard was of a supposed Iranian driver. Over the years versions I heard involved a number of other ethnic groups. Just plug in who you wanted.

In the first version I heard, the vehicle was a conversion van. Bed in the back, couple of captain chairs and large mural on the side. Didn’t start hearing motorhome versions till the 90’s. So I guess it’s plug in the popular large vehicle of the time.

In the early versions, the point of the story was just that the driver was too dumb to know cruise control wasn’t the same as an autopilot. I never heard of a lawyer being involved until a few years ago. Guess the story’s age was showing and it needed spicing up.

Most people telling it thought it was true. A friend had seen it in a paper, etc. I guess the whole story works because of the number of stupid people in the world.

For those who came in late, the L.A. Times on Sunday printed a prominent piece on the Winnebago and other “Stella Award” tall tales, which it suggested were “fabrications” spread by the tort reform movement (see Ted’s and my take on the story, as well as our four-year-old debunking of the tales themselves with credit to Snopes). Regarding Mr. Affeldt’s recollections, a few observations:

* You’d think before running an article suggesting that the tales’ wide circulation over the Net reflects a campaign of purposeful disinformation, L.A. Times reporter Myron Levin might have done a little digging into the origins of the tales to find out things like where and when the earliest sightings occur. But there’s scant sign that he did.

* As a visit to the generally excellent urban-legends site Snopes.com will make clear, it’s typical of garden-variety urban legends — the kind whose circulation reflects mere credulity on the part of reader/forwarders, as opposed to a conscious plot to hoodwink the public — that they are older than the tale-tellers realize them to be, and have gone through mutations reflecting what in musicology would be called the folk process.

* To be sure, Mr. Affeldt’s recollections do not conclusively refute the ATLA/L.A. Times thesis that the Winnebago and similar tales have been purposely fabricated. After all, even if there were already an urban legend in wide circulation about a clueless driver’s mistaking cruise control for autopilot, it’s conceivable that the plotters came up with the sly stroke of inserting a lawsuit into the narrative as part of their unceasing efforts to sap public confidence in the U.S. legal system. Of course, it bears repeating that ATLA-‘n’-L.A.T. have offered zero evidence of any such thing happening.

* One other thing missing from the L.A. Times account: any showing that the lawsuit-reform groups mentioned, such as ATRA and Common Good, or any similarly prominent group, have in fact circulated the Winnebago/Stella Award stories at all. Credulity being part of the human condition, of course, there are no doubt instances where the newsletter editor of the East Kankakee Citizens for Lawsuit Reform was taken in by a Stella email from his Aunt Fran and passed it along. That the L.A. Times piece does not adduce even one instance of serious backing from such groups should have raised a flag about the quote from Prof. Turley claiming that such stories have been devised with “skill” for purposes of “influencing policy”.

* Thanks to Patterico, Gail Heriot and Southern California Law Blog for linking to our earlier discussion. Among some bloggers of an opposite persuasion, the L.A. Times piece seems to have come as a confirmation of their own dearly held preconceptions on the subject, as with Ezra Klein, John Cole, and Mr. Furious, to some of whose comments sections Ted has paid a visit.

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