Monday, August 15, 2005

A Site I've Been Watching...

It seems like part of the unofficial tradition of Blogs is to tell people about other sites we read, so here is one that I have read with interest this summer: the "Revava" website.

I am NOT a member of their organization or movement - it doesn't really affect me at all, although I sympathize with their current plight and their religious ideals. Mostly it is interesting because a handful of radicals have managed to use their blog (in conjunction with other activities, of course) to make significant waves, as evidenced by the fact that the local government raided their office and confiscated lots of their materials. It is also interesting because it offers some news (or at least a perspective on the news) that you can't get from the mainstream media. It is therefore different than reading, say, Al-Jazeera for this purpose, because Al-Jazeera is a simple mix of propaganda and mainstream-media-wannabe-ism (in other words, almost-well-done yet obscenely slanted news reporting). Revava is not trying to be the next CNN at all; instead, their site gives a glimpse into the inner workings of an effective political action movement - a textured blend of personality cult & self-promotion (by the leaders), pure patriotism, puerile self-pity, genuine sacrifice (they all seem to be in jail frequently), bloody-shirt-waving, clever publicity stunts, astute networking and recruiting, very selective discussion topics, and consistently good writing (a law professor's favorite part). I also find some of their sidebar links interesting - they only have a few, all similarly radical, unlike most blogs that have tedious lists, sometimes even hundreds of links.

Particularly clever is the Revava Board Game (also click here for the jpeg of the game board itelf), which apparently has been so inflammatory that the police confiscated every copy of it they could find in the Revava offices. The game board itself is a little lesson in how to run a radical activist group effectively (that is, to grow it from a handful of founders to thousands of zealots in a few months). It poses interesting questions for armchair public-choice theory (the kind of public-choice theorizing I mostly do), and makes one wonder why more grassroots organizations don't do fun things like this. Clever law students here could create versions for their own favorite causes, no?

Of course, Revava has a cause that many people have considered worth dying for, and there aren't many causes around like that. And most of the people entangled in causes worth dying for lose their sense of humor, which the Revava guys haven't. That is part of the reason I keep going back to their site. The other reason, I suppose, is suspense: the whole thing could have a very tragic ending at any time, and Revava would suddenly disappear (for example, the ringleaders were arrested again last night, this time by the army, and there is no news yet about their whereabouts). I click on their link in my "favorites" menu late at night partly to see if they're still there...

How Media Reporting Distorts the Public's View of the Legal System

Click on the post title to link to an interesting article in today's Los Angeles Times. I think this is a significant issue, something economists talk about frequently - that perceptions get distorted when people get impressive news about an otherwise rare or random event.

Friday, July 29, 2005

Legal Malpractice Requires Showing of "Actual Innocence" by Criminal Defendants

From Lawyers Weekly USA:

To succeed in a legal malpractice case against his attorney, a criminal defendant must prove that he was "actually innocent" of the underlying charges against him, the Washington Supreme Court has ruled. A psychiatrist and his wife were indicted on 18 criminal counts, including conspiracy to defraud the United States, bank and tax fraud and filing false statements. On the advice of counsel, they agreed to plead guilty to two of the counts.

Case: Ang v. Martin, Washington Supreme Court No. 74698-2. June 23, 2005.

Tuesday, July 26, 2005

Analyzing The Pronunciation of "A" and "The"

Two interesting posts about the most commonplace of linguistic on the post title to link over to Language Log.

9th Circuit: Discrimination Can Extend To NAMES...

The 9th Cir. rules that it is unlawful discrimination for an employer to insist on calling a worker by an Anglicized nickname (in this case, "Manny") instead of his actual Arabic name. Click here for an article and here for the court's opinion...

I'm not sure if I agree with this. It would be one thing if the nickname was somehow pejorative (like to Texas law students referring to their professor from Connecticut as "Yankee" or "Liberal"), but some foreign names are just hard to pronounce. I spent a lot of the summer around people whose native dialect (Portuguese) prevents them from pronouncing "r" in certain words, and I would tease them by asking them to say, "Drury" (my full name) or "squirrel" - endless hours of entertainment, at least for me.

On the other hand, I suppose in today's world an adult should be able to request to be addressed however they want.

389,000 Catholic Parishioners in Oregon Are Defendants in Massive Lawsuit

This is an interesting twist...

FROM THE ARTICLE (click on the post title for the link)-

PORTLAND, Ore. - A federal bankruptcy judge on Friday joined together an estimated 389,000 Roman Catholic parishioners in western Oregon as defendants in a massive lawsuit alleging sexual abuse by priests.

The action by U.S. Bankruptcy Judge Elizabeth Perris is unusual because typically plaintiffs, not defendants, organize as a class in civil cases. But in this instance, lawyers for members of 124 parishes will argue that parishioners - not the archdiocese - own $600 million in church assets and property. If their argument succeeds, it would make the assets off-limits to plaintiffs.
More than 240 abuse claims are pending against the Archdiocese of Portland, seeking at least $400 million in damages. More than 100 cases have been settled, while others are headed to mediation.

The archdiocese has said it has only about $19 million to its name.

Monday, July 25, 2005


I am back from my summer vacation and can start blogging again! More to come...

Here's a couple pictures of me with my youngest son, Jonathan, enjoying the summer...more pictures of the fam are parked on my family's photo blog...

I was traveling in May and my electric razor broke on the trip, and I decided to wait until I got home to shave.

Tuesday, April 19, 2005


Another reason to put off that surgery...

Tuesday, April 12, 2005

Smallish Settlement for Taser Victim

From the article:

A federal lawsuit filed by the family of a man who died after Hollywood police shot him with a Taser has been settled for $6,000. The settlement in U.S. District Court in Fort Lauderdale is a signal that the family of Vincent Del' Ostia has conceded defeat in its wrongful death and civil rights lawsuit. The money will allow the family to get out of the case without winning or losing anything, according to the Del' Ostia's lawyer, Dennis Bailey. . . For [the] police, Friday's agreement validated their solid support for Tasers, stun guns that have sparked controversy across the country.

More than 100 people in the United States and Canada have died shortly after getting zapped by Tasers, but few of the fatalities have been attributed to the stun guns. In the majority of cases, medical examiners have blamed drugs.

Monday, April 11, 2005

Getting Used to Spam

The new study (click on the post title for the Washington Post article) says Americans find spam less bothersome than a year ago. I wonder if there are other factors involved besides self-resignation. Most email providers now filter junk email - not perfectly, of course, but pesky ones about mortgages and another person in Nigeria wanting to give me $10 MILLION usually don't land in my Inbox (except at my work email account, which flags spam but doesn't screen it). Also, one would HOPE that more people are able to recognize immediately the same old come-ons and don't bother opening them.

Fitting, In a Way....

Now-Infamous Boston Cardinal Law conducts memorial mass for JP2 at the Vatican....

Pot in the Home Constitutes Child Abuse, Court Says

Hopefully the link works without subscription (I have a subscription so it is hard for me to tell).

In this case, the New Mexico Supreme Court ruled that a drug dealer could be convicted of child abuse for keeping marijuana at home where his children lived.

I can't disagree with that.

Friday, April 08, 2005

The BLACK BOX in Your Car

Click here for the court's opinion. From the article (linked to in the title of the post):

The little "black box" in [a litigant's] car is a reliable source of evidence that he was driving at more than three times the speed limit when he slammed into another vehicle and killed two teenage girls in Pembroke Pines, an appeals court ruled on Wednesday. In what appears to be the nation's first such appellate ruling in a criminal case, the 4th District Court of Appeal agreed with the trial judge who allowed Broward prosecutors to use evidence gathered from the car's "black box" in Matos' 2003 trial.

Again: Big Jury Awards Are Not the Cause of High Medical Costs

Another article on the new Texas study demonstrating that occasional large jury awards have minimal effect on the malpractice-insurance rates of phsyicians (which is the main argument being touted for misguided tort reform). Click on the post title to follow the link to the article.


Adult hosts are now liable in TN if teens drink at their parties.
From the article:

In an opinion with wide implications for parents of teenagers who host parties, the Tennessee Supreme Court this week ruled that adults have a clear duty to ensure the safety of minor guests if they know that kids are drinking — even if the adults do not provide the alcohol.

The longer I teach criminal law, the more it seems that people don't kill people, alcohol kills people. Everyone involved in the production and serving of alcohol reaps the benefits while externalizing the costs of their activities onto others - the victims. Immunizing them would constitute a government subsidy of their private pursuits.

Get the court's opinion here.

The Common Law Applies to Recording Industry Rights?

From the article:
New York's highest court ruled Tuesday that common law protects a record company's copyright on recordings made prior to 1972 — a decision that could have industrywide ramifications for everything from Bach to the Beatles. That lawsuit involved Franklin, Tenn.-based Naxos of America Inc., which restored and marketed 1930s classical records made in England by another company, The Gramaphone Co. Limited, after the 50-year British copyright had expired. Hollywood, Calif.-based Capitol Records Inc., which currently holds the rights to those recordings, sued.
They won on appeal. "Naxos, which bills itself as 'the world's leading classical music label,' said it would appeal." Click here for the text of the Court's opinion.

Monday, March 21, 2005

Law Hockey

It's too far away for South Texas students to attend in large numbers, sorry.

From the original:
Relief is on the way for fans starved for hockey this year. On Sunday, April 10, Michigan law students and lawyers will hit the ice in East Lansing for a very good cause: to support civil legal services for low-income people in Michigan. The annual Skate for Justice tournament will be held at the Clarence L. Munn Ice Arena on the campus of Michigan State University beginning at noon. Skate for Justice is an annual charity ice hockey tournament among students at Michigan law schools, including the University of Michigan, Ave Maria, University of Detroit Mercy, Wayne State University, and Michigan State University College of Law. This special fundraising event will support the Access to Justice (ATJ) Development Campaign, one of several justice initiatives at the State Bar of Michigan.

Evangelical Environmentalists?

Or, maybe just environmentalist evangelicals? Anyway, you may have already seen a few news stories about this, but if not, click on the post title. And click here for an essay by one of the proponents (dodging the troubling paradox of eschatology and "stewardship" in theology).

Jordanian Parliament Annuls Greek Orthodox Land Transfers in Jerusalem

Not clear what the chain of enforcement will be for this one....

Death Of Venice

Global warming and other pesky problems lead to abandoned buildings in the befabled city....

Sunday, March 20, 2005

CT Appellate Court Rules on Case I Handled...

I spent months, it seemed, on this case in its early stages (endless pre-trial motions with a frustrating pro se on the other side) when I worked at Legal Aid in Hartford. I am happy to see how it turned out, and happy to see the law & econ twist to it (concerns about incentives, etc.). Great job, Attorney Pels. Reading the case made me miss Legal Aid a lot. And the Court did the right thing on both issues...

The landlord in the case, Mr. Ancona, is a colorful local character in Hartford - interested law students can have fun searching for his name (and his relatives) in Connecticut cases on Westlaw...

Saturday, March 19, 2005

Interesting Article About Afghanistan

I found this really informative, definitely a few steps beyond the mainstream media's "the-CIA-created-the-Taliban" or "Pakistan-created-the-Taliban." Particularly interesting was the meddling in the 1970's and 80's by China.

Friday, March 18, 2005

Larry Lessig Makes More Room for the Rest of Us...

Famous Person Lawrence Lessig announced on his blog that he will never publish in a law review again because he objects to the boilerplate copyright-transfer contracts that the journals ask authors to sign. It looks that the Minn. Law Rev. editors have already resolved this issue there in the comments by offering a modified contract. For a minute, I had (selfishly) gotten my hopes up that the rest of us would have better odds of getting published in the top journals if Lessig decided to publish all his work elsewhere. :-)

I love reading his books and articles, though. It's just that a Lessig-shaped hole in the law journal world might be filled by four or five up-and-coming writers (which he should take as a compliment, of course). We will read his new work wherever he publishes it.

Thursday, March 17, 2005

4th Cir. Reinstates Cell Phone Radiation Suits

Yesterday the 4th Circuit reinstated five lawsuits that allege cell phone companies failed to protect consumers from unsafe levels of radiation. Click on the title to read the AP article and here to read the opinion.

Tuesday, March 15, 2005

Interesting Report on Entry-Level Law Prof Hiring

Larry Solum is collecting info (apparently he hasn't received any from South Texas) about this year's faculty hiring. The most interesting detail to me is that 29 of 59 candidates (nearly half, no?) had other advanced degrees, apparently confirming my running hypothesis that law schools are in a gradual shift toward hiring JD/Ph.D's, or at least JD/__'s. The more interesting (but also more speculative) answer is whether this will eventually force higher salaries for professors in other areas of academia, given that Ph.D.'s could substantially increase their earning power by adding a JD to their CV.

Veterinary Malpractice and Loss of Companionship

Click on the title to follow the link to an interesting article about lawsuits against vets - sometimes animal operations go terribly wrong....

Monday, March 14, 2005

Be Careful What You Wish For: Attorney Accidentally Sues Himself

Thanks to the Legal Reader for this one....

Saturday, March 12, 2005

Case Against Alcohol Companies For Drunk Driving Accident Dismissed

One cutting-edge area of tort law is the spate of lawsuits against alcohol companies for their role in contributing to drunk driving accidents. Unfortunately, one of the pioneering cases (a class action!) was just dismissed by a California trial judge, apparently because the plaintiffs did not allege enough facts about specific advertisements or that the drunk driver had viewed them. The plaintiffs plan to appeal, though. If they're reading this, I'd love to help!

A great introductory article to this area is "Lawsuit Claims Alcohol Companies Marketed to Underage Drinkers," in Lawyers Weekly USA (Jan. 19, 2004). The case just dismissed was not covered well by the media, although there is a good article in the Milwaukee Journal Sentinal (click here). Click on "read full post" for my ranting and raving on this issue...

From the article:

[The suit asked the court] to stop alleged underage marketing practices. It also sought damages equivalent to the money it says Miller and Anheuser-Busch received by selling alcohol to underage consumers. That could be $4 billion to $5 billion, according to the Goodwins' attorney, Steve Berman, who vowed to appeal Lichtman's ruling. Both Milwaukee-based Miller and St. Louis-based Anheuser-Busch said the lawsuit was without merit. Both companies said their ad campaigns and sales practices target people who are 21 and older.

Yeah, right! Most of the beer ads I see appear to be targeted at junior high boys. In an interesting twist, Miller Brewing Company is now suing its four insurers for their refusal to cover litigation costs over this issue, especially The Hartford (where one of my close friends works!). Click here for that story.

I think alcohol companies are simply externalizing the social costs of their products; and it is one of the costliest products in our society. As a Legal Aid lawyer, my previously-held biblical scruples against alcohol consumption blossomed into an impassioned resentment of the stuff and those who peddle it, as it seemed to be one of the main things generating poverty in the lives of my clients. Then I started teaching Criminal Law, and had to conclude that "intoxication was no defense" to crimes at common law mostly because it would have exonerated the defendant in almost every case.

The billions of dollars in profits taken in by alcohol companies should be offset by some of the billions of dollars in social costs that their products generate; in the absence of that, the rest of us are essentially forced to subsidize them by internalizing those costs ourselves (even those of us who don't drink). I understand that I won't win many people over to my Prohibitionist platform anytime soon, but I do think the alcohol companies should have to make an honest buck like everybody else - and right now, they're not. They're taking money out of my pocket without asking me - via higher premiums for auto insurance, health insurance, and taxes for our criminal justice system and welfare system. The alcohol companies could, however, purchase insurance for such liability, which would help them internalize the realistic costs of their product. (Their current insurers are saying they haven't paid for such coverage yet). This is why I think these cases are fantastic. And the companies would cover their increased premium either by docking the dividends to their shareholders - the ones currently transferring wealth to themselves from the rest of us without our consent - or from the consumers of their products, who would have to pay higher prices. Higher prices lowers consumption (except with a rare economic scenario called "Giffen goods") - so it should lower the amount high school kids consume. Higher alcohol prices should, in theory, price out the most irresponsible consumers from the market first.

Harvard Study: 1/2 of Bankruptcies Are Due to Medical Bills

From the Lawyers Weekly USA article:
Researchers from Harvard's law and medical schools said the findings underscore the inadequacy of many private insurance plans that offer worst-case catastrophic coverage, but little financial security for less severe illnesses, according to The Associated Press.
"Unless you're Bill Gates, you're just one serious illness away from bankruptcy," said Dr. David Himmelstein, the study's lead author and an associate professor of medicine. "Most of the medically bankrupt were average Americans who happened to get sick."

I know my fellow conservatives like to emphasize "personal responsibility" as the antidote to bankruptcy (the impetus behind sweeping new federal legislation, right?) but it seems that "responsibility" would only apply in the other half of the cases, no? It's easier to see the social value of punitive damages against firms that contribute to serious illnesses through the manufacture of asbestos, environmental toxins, etc.

Child Can Sue for Asbestos Exposure from Dust On Father’s Clothes

The Washington Court of Appeals ruled (reversing a summary judgment) that a child exposed to asbestos dust on his father’s clothes can sue - in strict liability under state law. An interesting case.


This is an open solicitation to any readers who are familiar with the business of air couriers. I've been running across references to this online, have heard urban legends about it, and have found several books on Amazon - none of which can be ordered from Barnes & Noble, strangely. I'd love to hear from anyone who has worked as an air courier, used the service, or was familiar with someone who did, or from airline industry people who can tell me how common the practice is or how it is regulated. Thanks! I'm trying to separate myth from reality.


Friday, March 11, 2005

Catch Burglars By Leaving Out Snacks...

From the article:

Police say thieves often cannot resist tucking into a snack after breaking into a home, and traces of saliva on the food remains can yield a telltale signature of the criminal's DNA.
A handful of hungry crooks have been caught and jailed this way over the past decade, a phenomenon that has prompted curious scientists to wonder which foods may yield the best saliva sample.

The article cautioned that CHOCOLATE does NOT work well for this, because they eat it all and leave no good saliva samples behind. :-)

Thursday, March 10, 2005

Tough Israeli Flower Naturally Grows Microscopic Stars of David?

From the article:
It grows wild in Israel, thriving in the harsh dry conditions that would kill many other plants. And what do the cells of this hardy survivor - a native Israeli Persian buttercup - look like under a microscope? A Star of David. "It really is symbolic," says Dr. Rina Kamenetsky, a researcher at Israel's Volcani Institute, who made the surprising discovery while trying to understand the survival mechanisms of this resilient bulb, known in Hebrew as nurit, and in Latin as Ranunculus asiaticus.

She and her Canadian colleagues discovered that the storage roots of this particular Persian buttercup have a special mechanism for resisting drought and heat that is found in no other plant to date - a finding they published recently in the journal New Phytologist. But Kamenetsky also found an additional surprise: under a microscope the cells of the root assume the form of interlocking Stars of David. ". . . It turns out that the cell walls of the storage roots of this particular plant serve as a shield. In winter, when the first rain comes, the cell walls block the sudden influx of water which could cause the cells to burst. At the same time, they protect the cells from dehydration by absorbing water. The cell walls that serve as a year-round shield also happen to look like a shield - the shield of David. "We have never before seen a structure like this in the cell walls of plants," she says. "This is a very rare structure - maybe even unique

Teen Convicted of Illegal Internet Piracy - But Under State Law

From the article:

An Arizona university student is believed to be the first person in the country to be convicted of a crime under state laws for illegally downloading music and movies from the Internet, prosecutors and activists say. University of Arizona student Parvin Dhaliwal pleaded guilty to possession of counterfeit marks, or unauthorized copies of intellectual property.
Under an agreement with prosecutors, Dhaliwal was sentenced last month to a three-month deferred jail sentence, three years of probation, 200 hours of community service and a $5,400 fine. The judge in the case also ordered him to take a copyright class at the University of Arizona, which he attends, and to avoid file-sharing computer programs.

The interesting thing about the case, from a standpoint of legal doctrine, is the enforcement of copyright is strictly FEDERAL, under the Constitution. Up to now, states have not been involved much at all in these cases.

More: Federal investigators referred the case to the Maricopa County Attorney's Office for prosecution because Dhaliwal was a minor when he committed the crime, said Krystal Garza, a spokeswoman for the office. "His age was a big factor," she said. "If it went into federal court, it's a minimum of three months in jail up front."

Supreme Court Reject "Secrecy" in Tax Courts

On Monday, the Supreme Court rejected a practice adopted in some federal tax court proceedings that shielded certain documents from creditors....interesting case.

Dog Accidentally Subpoenaed As Witness in Murder Trial

From the Article:

The defendant had written his dog a letter from his cell, and that is how the shih tzu's name got on the witness list. Prosecutors realized the mistake on Tuesday after the defendant's brother brought in Murphy to answer the subpoena and a deputy would not let them into the courthouse because no dogs were allowed.

Thanks to Jay Clendenin for help finding this!

Friday, March 04, 2005

Reverse Bifurcation at Work in the Fen-Phen Cases

Click on the post title to read an interesting article about reverse bifurcation, which is also the subject of my current writing project (thanks to research assistant Jay Clendenin for helping me find this). Reverse bifurcation is where the damages phase of the trial occurs first (for non-lawyers, this means how much money the plaintiff gets to win), and then the question of liability is determined second (for non-lawyer readers, this is the question of whether the defendant has to pay anything in the first place). This innovative procedure has been in use for over twenty years, originating in the Philadelphia complex litigation courts during the asbestos cases of the early 1980's. The most common justification for it is that the reversed order fosters quick settlements and saves time and court costs. Once the parties know how much money the case is really worth, they almost always settle (often for the amount the jury suggested, interestingly). If you read the article closely, it appears to say that 350 Fen-Phen cases went to trial in Philadelphia last year (most or all using reserve bifurcation), and only two of the 350 went past the first phase to reach the liability question. One interesting feature of reverse bifurcation is that originally defendants seemed resistant to it - they were afraid that putting evidence about damages to the jury first would be too prejudicial to their case - but now they have come to favor it, and it is plaintiff's lawyers who seem the most critical (because they like to mix the evidence about liability and the plaintiff's injuries together to make the jury really upset). "Read more" has more for this one....

There have been no academic articles devoted to the subject to date (I am working on one now), just practitioner pieces. I advocate a more widespread use for the procedure, not only because of fostering settlement, but because I think the settlements themselves will more accurately reflect the true value of the case. In most lawsuits, it seems, the primary area of uncertainty or unpredictability is the amount of damages (and perhaps the causation question, which reverse bifurcation often includes at the damages phase), if for no other reason than it can span such a large continuum. The liability question is a simple yes-or-no matter, making it easier for the parities to assign reasonable guesses at the odds. Eliminating the main area of uncertainty for the parties is the most efficient way to foster settlement. Also, the traditional order of the trial puts the defendant in the position of having to deny their wrongdoing insistently in hopes of avoiding damages completely. Once the jury has decided liability exists, these denials become annoying, possibly resulting in disproportionately higher damage awards as a punishment. Aware of this, the case takes on even more value for the defendant, who is tempted to deny liability in the first round even more stridently, creating a vicious cycle. In response to this increased front-end investment by the defense, the plaintiff has an increased incentive to "cheat" a little by mixing in prejudicial evidence about the victim's injuries during the liability question. In other words, the traditional order provides incentives for both parties to invest disproportionate resources in the beginning of the trial, manipulating the jury, and making the stakes higher and higher (and settlement agreements more and more difficult). Reverse bifurcation solves this problem.

Thursday, March 03, 2005

More on the Cocaine Vaccine...

For those interested in more background about this, click on the post title for the link to a new article in the scientific journal Psychiatry Today...

Monday, February 28, 2005

Latte Lingo

This post from Language Log was really funny.

The Economist on American Street Gangs...

The statistics and analysis in this article are interesting, as is the explanation for the supposed connection between street gangs and Al-Qaeda...

The British Royals Dropping French...

I know Queen Elizabeth II is considered pretty conservative, but it sure took a long time (like, over 939 years) for the Royals to drop French as the official language of menus in the palace. Language Legend has a more interesting discussion of it than the Telegraph article linked to in the post title.

U.S. pushes Arabic: Study of language now tops Hebrew

This seems to me to be a great set-up for a "law of unintended consequences" story 30 years down the road (something Huxley-like, such as, "...Arab culture and Islam was able to permeate American society and political thought during the 30's and 40's in part because the government encouraged widespread acquisition of the language a generation earlier, apparently with the thought that half the American workforce could be employed in espionage and security analysis during the brief period when militant Arab states were viewed as the primary threat to American security..."). On the other hand, I WISH my kids were getting more foreign language instruction in school instead of some of the fluffy computer classes, etc. And I can't complain about people learning Arabic, because I ended up in Amman, Jordan doing an Arabic immersion course after college (through a series of changed plans, and I've forgotten almost all of it, I think). I just thought the scope of the government push for this is strange...wouldn't Hindi and Mandarin be more useful for expansion of global markets? Just how strategic can this be?

Friday, February 25, 2005

You Heard It Here First: Giving the Cocaine Vaccine to Toddlers

I have an article forthcoming in the Journal of Law & Urban Policy about the new cocaine vaccine, in which I suggest that there will be widespread calls for immunizing the general public, not just addicts in rehab programs (the oringinally intended use of the vaccine). But here is an article from The Age about parents groups already calling for universal vaccination (BTW, the current state of the technology is a temporary inoculation that must be repeated every few months - it is not yet know if the body eventually develops a permanent immunity):

A group of Queensland Nationals want the Federal Government to investigate
giving an anti-junkie vaccination to children under 12 months old. The vaccination, under development in the UK, would render children immune to becoming smokers or drug users and become part of the national measles, mumps and rubella vaccination program. Tis weekend's Queensland Nationals central council meeting will debate calling for the investigation. Drugs are a scourge," said Nationals member Ken Wilson. "I feel strongly about this and I'm inviting the Federal Government to investigate it and if it proves worthwhile, then do a vaccination program." Britain's Independent reported the jab would block out the euphoria associated with cocaine and heroin, and was due to be marketed within two years in Britain where the Department of Trade and Industry has set up a project to find scientific ways to break drug addictions. Bitish biotech firm Xenova has conducted trials of an anti-cocaine vaccine that showed that 58 per cent of patients remained cocaine-free after three months.

Wednesday, February 23, 2005

More Church Liability: $17M for Van Accident

The Milwaukee Archdiocese of the Roman Catholic Church is liable for a $17 million verdict over a car accident caused by a church volunteer. The decision is noteworthy from a legal standpoint because the volunteer was actually driving on behalf of a parachurch organization (Legion of Mary) that had a chapter in the parish. (The Archdiocese is also facing unrelated charges of cover-ups for child molestation by the clergy).

The church member had been a volunteer driver for the Legion of Mary (mostly helping transport the elderly to services) for about 40 years before this accident. From the article: "That day, she was delivering a statue of the Virgin Mary to a parishioner when she ran a red light and crashed into the car of semiretired barber Hjalmer Heikkinen. The man's car slid across the pavement and into a utility pole, and he has been paralyzed ever since, dependent on his family's care. His right leg later had to be amputated above the knee because of an infection, and his barbershop - where he had been trimming hair - closed."

How the jury derived the amount of the verdict: "The jury awarded Heikkinen $10 million for his pain, suffering and disability since the accident, another $5 million for future agonies and $500,000 more to compensate his wife of 61 years for her losses because of the wreck. He was awarded $558,366 for his medical bills so far, according to a total set by Circuit Judge Michael D. Guolee, and the jury awarded Heikkinen $750,000 more for future medical expenses."

For readers who find the $17 million verdict excessive, please note that the victim offered to settle for $3 million last Septemeber, but the church refused. I find the liability for an affiliated parachurch group's activities more significant than the size of the verdict. As a spokesperson for the Archdiocese said, the volunteer "was not performing duties for Christ King Parish nor for the archdiocese when this terrible accident happened."

10th Circuit: New Supreme Court Sentencing Ruling Inapplicable to Restitution Orders

The court said that jury findings may be necessary for incarceration sentences, but not for ordering a criminal to make restitution to the victim. Click on the post title to get the text of the decision.

3rd Circuit Upholds Punitive Damages 75x the Compensatory Remedy

Relax, it wasn't billions of dollars. The court upheld a $150,000 punitive award against an insurance company for unreasonably delaying payment on a property damage claim that was diminutive by comparison.

Judge Issues Landmark Church Abuse Ruling

A judge in Boston has held that a church (in this case, a Jehovah's Witnesses group) has a fiduciary duty to protect its members from being molested by the clergy. This appears to be a new step in the development of church liability law; whereas many of the cases against the Roman Catholic Church in recent years centered on allegations that the hierarchy knowingly allowed the abuse to continue, this rule would create almost strict liability for churches. From the article: "A Superior Court judge has ruled that a Jehovah's Witness church in Boston can be sued for breaking its trust and legal duty to a girl who claims she was sexually abused by one of the church's ministerial servants." This ruling appears to be the first time a court (at least in that state) has ruled that church officials have a "fiduciary duty" to their members.

"Fiduciary duty" is a legal term of art: in practice, it means that certain people in positions of trust have a legal duty to put another's interests ahead of their own interests (not unlike the typical theological definition offered for "agape" love mandated in the New Testament). Trustees, certain business associates, lawyers and doctors are among the most common categories of people held to this standard. Smith's ruling also is expected to open another legal channel for attorneys to bring civil suits against churches for clergy abuse cases, according to Lisa Bruno, news editor for Massachusetts Lawyers Weekly. Given the overlap between the definition of a "fiduciary duty" and the New Testament commandment for the church, there should not be much tension here.

It was easy to see this coming, I think; there has been a growing frustration about the fact that there seems to be insufficient legal incentives for religious groups to prevent serious clergy abuse. People tend to be more trusting of relgious groups and clergy, leaving themselves vulnerable to exploitation where there are niadequate institutional safeguards or screening of those in leadership positions. Such trust and concomitant vulnerability seems to be the underlying essence of a legal fiduciary. In addition, institutions are often the best insurers against these types of risks: they can purchase liability insurance organizationally (obtaining economies of scale), and they have private or internal information about potential loci of abuse (information not readily available to outsiders). The information asymmetry puts the religious organization in the best position to identify potential hazards and prevent the harms before they occur. I understand that the ruling is unfavorable to churches in the immediate sense, but in the long run, denying that there is a fiduciary duty to members - that members can "trust" the church in a special way - undermines the credibility of any religious or spiritual institution.

Thursday, February 17, 2005

Class Action Settlement Amounts Rise in Securities Cases

Business Insurance reports about a new study that appears to show hefty investor losses in securities class action lawsuits drove settlements to unprecedented levels in 2004. Click on the post title to read the article.

Supreme Court's Recent Guildelines Decision Not Retroactive

Click on the link to read the full text of the decision by the 2nd Circuit in Green v. U.S. (.pdf file). Quote: “...a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive.”

Airlines in Europe Must Pay Customers for Delays and Bumps

"New EU laws promising compensation of between £170 and £416 to stranded and delayed airline passengers come into force today." I can't tell you how many times I've fantasized about having a regime like that here, when I've paid $400 for what I thought was the privilege of arriving at my destination at a certain place and time, but the airline acts as though I paid for the privilege of having them as my travel companions, no matter when I leave or arrive. I use the airlines a lot and harbor a lot of resentment against them (another reason to feel passionate about the DVT cases pending in federal courts around the country). The link in the title above is for the Reuters-UK story; click here for a "Q&A" by the Guardian.

My favorite quote: "This is going to become a lawyer's field day and is why in our view the law is very bad," said Andrew Clarke, director air transport policy for the European Regions Airline Association. Unless, Mr. Clarke, I am a lawyer.

Wednesday, February 16, 2005

Combining Covenant Marriage and Mass Weddings

Click on the title to read the New York Times article about the Covenant Marriage movement in Arkansas. I did my law review "comment" on Covenant Marriage when it first emerged in Louisiana in the late 1990's, but never published it, unfortunately (for non-lawyers, a law review "comment" is a 60-70 page paper students typically write as part of the requirement for membership on the editorial board of their law school's official academic journal - in my case, the Connecticut Law Review). I've also mentioned it before on this blog (click here). Covenant Marriage is basically a voluntary but legally-binding waiver of one's right to a no-fault divorce. Of course, everyone is free to waive your right to a no-fault divorce by simply choosing to stay married; this is a legal mechanism that allows people to bind themselves so they cannot change their minds later (or risk that spouses changing their minds). Thanks to student Darcy Douglas for sending me the NYT article. For another law prof blogging about this issue, click here.

This NYT article notes a bizarre but predictable turn the movement has taken, a hybridization between the mass-weddings Sun Myung Moon conducted in the 1980's and the individualized legal waiver of one's right to a no-fault divorce. Apparently thousands of people (mostly associated with one or two megachurches) did a collective ceremony to invoke the Covenant Marriage against themselves all at once (the proper preposition from a legal standpoint). Click on READ MORE for my true feelings about this....

My opinion: I have (admittedly unfashionable) Puritanical views about marriage and divorce, of course, and I share the concerns of some leading economists that no-fault divorce has impoverished as many people as it has liberated (and my students know that I am skeptical about any so-called "divorce rate" that is used to either justify or criticize the current legal regime). That being said, I am doubtful about the Covenant Marriage movement. First, there is the old question of why we need legal mechanisms that function like Ulysses' ropes, which he used to bind himself to his ship's mast before he sailed near the Sirens. Wouldn't it make enough of a "statement" if these couples simply nurtured healthy marriage relationships at home and stayed married by choice? Why the need to invoke legal sanctions against oneself, merely to prevent ourselves from changing our minds later? I understand the practice of exacting binding promises from other parties - like in a prenuptial agreement - but this seems mostly directed at oneself. (if the goal is to keep the other person from ever leaving you, you have alternative measures: create an onerous pre-nup, or be more picky in choosing a mate, etc.).

Second, I know there is a tendency for evangelical Christians to hale anything that appears to bolster biblical models for marriage and sexuality, but this particular mechanism seems to encroach a bit on the prohibitions against self-invoked sanctions in Matt. 5:33-37. Why does a real Christian need to attach his or her vow or promise to something secular, like legal sanctions? Why not just keep your word? I can have my Puritanical views and keep my word at the same time. I do not need a legal mechanism to validate my faith or the integrity of my promises. My faith can only be validated by its inherent veracity. I confess I have doubts about any "faith" that needs some kind of affirmation from secular bystanders, or the government, in order to be strengthened or legitimized.

At this point I anticipate the objection that the value of a Covenant Marriage is not to bind oneself with imprecatory vows, but rather to bind one's spouse to stay in the marriage in case the person wants out later. Presumably this would occur mostly in cases of apostasy - it seems unlikely that an "unbeliever" would assent to self-restriction in the first place, and unlikely that a person who is still a faithful adherent would seek to breach it. The problem being addressed, then, is the Christian spouse who later backslides spiritually and consequently quits the marriage. Again, however, using a legal device to prevent such actions runs aground on the Bible itself. Although the Bible forbids believers from initiating divorces against each other, it also commands believers to let an unbelieving spouse out of the marriage, graciously, if they want out. (See 1 Cor. 7:15). The person abandoning the marriage may be in the wrong, but they're supposed to be free to go. In this sense, it would seem unbiblical - disobedient to Scripture - to try to use the Covenant Marriage vows as leverage to keep an embittered person in the marriage, even if that person was "wrong" for wanting out in the first place.

Third, I have big doubts about whether this Covenant would hold up legally if it was challenged in court. I studied the Louisiana Covenant Marriage statute carefully and found no provisions for fraud or duress, just required disclosures about previous sexual history and communicable diseases. These disclosures were indeed mandatory, but there was no remedy where someone lied. It was unclear whether pre-marriage deception would be grounds for dissolution of a Covenant Marriage (it was not on the list of enumerated justifications for dissolution). There is also the question of coercion or duress. Disgruntled former church members often claim that their previous church coerced them into all sorts of things (usually various forms of self-denial and unworldiness, but sometimes unpleasant marriages to church members). It is easy to imagine a person who wants "out" of a covenant marriage, who has also lost faith in their church or denomination (for whatever reason), and now claims that they were coerced into this thing by their church leaders - that it was a requirement for membership, or a requirement for having a wedding inside the church, or the only way to avoid severe spiritual stigma, or whatever. And I can imagine many judges sympathizing with this assertion; I would sympathize, and I'm a believer. It is easier still to imagine later claims of coercion, and sympathy for such claims, when the plaintiff gave her rushed assent at high-pressure gathering of 5,000 people, a mass-vowing ceremony. The big crowds certainly garner more media attention for the cause (I confess I wish the New York Times would cover events at my little church!), but the sensational environment may undermine the legal sustainability of the vows themselves.

Christian intellectuals, thinkers, and leaders may undermine the credibility of the Cause when they cheer anything that even "looks like" it leans in a traditional direction. There should be more to Christianity than turning back the clock to 1950, even if the culture has taken some bad turns (even horrible turns) in the meantime. A more searching analysis is warranted.

Rabbit Held Hostage on Website

I you haven't seen this yet, and you're trying to lower your level of optimism about human nature, you could visit The caretaker of what appears to be an abandoned or escaped domesticated rabbit is threatening to EAT his captive (or pet, if you will) if he does not receive $50,000 in donations by a certain date. That's pretty unbelievable, but here is the best part: he claims to have received over $14,000 in donations already, if I read it correctly (the site accepts major credit cards). Thanks to Ashley, a student in my Law & Economics class, for forwarding me the link. The "give-me-money-or-I-eat-the-hostage" thing seems wrong somehow, but not necessarily illegal.

I described the pet as either abandoned or escaped because it's coloration seems much lighter than the many wild rabbits I have seen. It looks like a pet store rabbit to me. But I do not claim to be an expert. Click on READ MORE for additional discussion...

I am sure that animal rights advocates will find this deeply disturbing (as I said, it is not one of the shining moments for our species), but I am not sure this violates the typical animal cruelty laws - especially since rabbit dishes can be ordered at many fine restaurants in every metropolitan area. It mostly seems like cruelty to rabbit lovers - actually, outright exploitation. I was in junior high when Saturday Night Live aired Eddie Murphy's gag about "Larry the Lobster" (I'm not sure if my 1L students were even born yet), where the show ran a mock telethon to save a lobster from being cooked on national television (supposedly this was an unplanned stunt that Murphy pulled "live" without warning, interrupting a plan to cook the creature). But there was no ransom being demanded back then. The ransom thing is troubling. I don't care if Toby's owner eats him (I've eaten rabbit before with no regrets, although I prefer eating animals that are larger than me, for personal reasons - plus the owner risks getting certain parasites), but anyone donating money with the sincere desire to save Toby is surely encouraging follow up stunts; this would be the easiest $14,000 ever made. Could a wave of animal-kidnapping legislation be far behind?

I had a friend once whose family went through hard financial times when he was a kid and his Dad killed and cooked their pet bunny and made them eat it. Pretty traumatic for a little kid - and his Dad got angry that some of the kids refused to eat it at all and were wasting a good dinner, the only meat they could afford. I also went through a phase several years ago where I kept a little vegetable garden, and being an obsessive reader, I read every book my local library had about organic gardening. One of the most memorable ones was a book explaining how to be completely self-sufficient, food wise, with less than one acre for a back yard. (that is, how to grow ALL of your family's food on a small suburban lot so you never have to buy anything - it was an elaborate plan for crop maximization, space maximization, seasonal plantings, etc.) Anyway, the last chapter discussed the problem of MEAT, which takes a lot of land - unless you are willing to eat rabbits. The book advocated having at two females and one male, which it said would produce enough offspring to provide a family of four with some meat all throughout the year so they never had to buy any of that, either. I wanted to try it, but I could never get my wife to agree to the idea, unfortunately. :-) She thought it might traumatize the children. This was before we met the guy whose Dad made him eat his pet rabbit.

I've ordered rabbit two or three times in restaurants. I enjoyed it the first time or two, but the last time was particularly unpleasant (the sauce was just too rich or something, I just felt sick afterward) and I never wanted to eat it again. It was also during a luncheon with some unpleasant lawyers from an unpleasant law firm in Connecticut, so it is not a memory I "savor" on that note, either. My wife won't eat it because they are rodents and she believes rodents are full of parasites.

Tuesday, February 15, 2005

Lawyers Split on Impact of Conviction for Terrorist's Attorney

Attorney Lynne Stewart's conviction on terrorism charges has lawyers divided over what it means for their profession. It certainly gives professors a more exciting case to discuss in Legal Profession/Professional Responsibility classes than we've had before.

McDonald's To Pay $8.5 Million in Trans-Fat Lawsuit

I haven't seen this getting much coverage in most of the major news outlets yet, but here is an excerpt from the AP (click ont he post title for full story):

McDonald's Corp. will pay $8.5 million to settle a lawsuit accusing the
fast-food giant of failing to inform consumers of delays in a plan to reduce fat
in the cooking oil used for its popular french fries and other, a nonprofit advocacy group, sued McDonald's in California state court in 2003, alleging the company did not effectively disclose to the public that it had not switched to a healthier cooking oil.In September 2002, McDonald's announced it would lower trans fat in its cooking oils and said the switch would be completed in five months.
In February 2003, McDonald's announced a delay. The lawsuit accused the Oak Brook, Ill.-based company of failing to adequately inform consumers of that delay.The agreement announced Wednesday requires McDonald's to pay $7 million to the American Heart Association to use the proceeds to educate the public about trans fats in foods. Heart-clogging trans fat is made when manufacturers add hydrogen to vegetable oil — a process called hydrogenation. Wednesday's settlement also requires McDonald's to spend $1.5 million publicizing that it has not followed through on its 2002 pledge.

McDonald's also seems to have lost a legal battle in the European Court of Human Rights (click here or here or here or here for the full story):

Two British activists convicted of libelling the U.S. fast food chain McDonald's have won a reversal of the decision at the European Court of Human Rights. The Strasbourg-based court ruled on Tuesday that Helen Steel and David Morris did not receive a fair trial and their freedom of expression was violated by the 1997 judgment ordering them to pay 60,000 sterling in damages. The two had issued a pamphlet in 1984 accusing McDonald's of starving the Third World, destroying rainforests and selling unhealthy food. Their trial was the longest in English legal history.

Two activists won their appeal in the "McLibel" case

Friday, February 11, 2005

Judges Still Following Sentencing Guidelines, Survey Says

Here's the opening lines, which tell most of the story (click on the post title to go to the article):
Most federal judges are imposing prison terms within sentencing guidelines even
though the Supreme Court says they do not need to, according to an analysis
presented Thursday to Congress. At the same congressional hearing,
however, a high-ranking Justice Department official described anecdotal evidence
that judges are imposing disparate sentences for similar crimes since last
month's high court ruling - precisely what the nearly 20-year-old guidelines
were intended to prevent. The two views on how judges are responding to
the decision reflect differences in Congress and the legal community about
whether to write new sentencing rules and, if so, how quickly. Just 9 percent of the 733 sentences handed down in the three weeks after the Supreme Court decision and reviewed by the U.S. Sentencing Commission did not comply with the guidelines, said U.S. District Judge Ricardo Hinojosa of Texas, the commission chairman.

Law & Linguistics in Important Patent Case

"Hundreds of people flocked to the U.S. Court of Appeals for the Federal Circuit on Tuesday to listen to arguments in a case that could affect how patents are interpreted. The Federal Circuit addressed in an en banc hearing whether courts should rely primarily on dictionaries to define the terms that describe the scope of an invention, or look to the description in the patent itself. Phillips v. AWH, 363 F.3d 1207, is one of the most pivotal patent issues to come before the Federal Circuit, generating more than 50 amicus curiae briefs."

ALL of the linguists I have read on the subject (which is quite a few - law & linguistics is one of my main areas of interest) think it is ridiculous, if not dangerous, for judges to rely on dictionaries in making decisions. It is not what dictionaries were intended for, and it shows a gross misunderstanding of the way language works.

Thursday, February 10, 2005

Frozen Chickens Used in Crime

Australian police admitted Thursday they were
mystified by a spate of apparent attacks on homes
using frozen chickens as missiles.
(AFP/EPA/File/Guido Roesli)

Now "The Onion" Makes Fun of PowerPoint

Click on the title to read the article. Funny but morbid.

10th Circuit Reverses Tobacco Punitive Award of $15 Million

The 10th Circuit threw out a $15 million punitive damages award in a tobacco case, but upheld the Kansas man's right to sue the tobacco companies - over a disease that cost him his legs. Click here for an AP article, and click here to read the actual Court opinion.

Senate Battles over Tort Reform Continue...

On Wednesday the Republican majority in the Senate fought back attempts to change legislation (click on post title for the article) that would send most class action lawsuits to federal court. This appears to be a victory for the tort-reform folks.

Cocaine Vaccine's Effectiveness Depends on Dosage

I have an article about the new cocain vaccine forthcoming in the Rutgers Journal of Law and Urban Policy, and I follow the news stories about it avidly (I've also had the opportunity to meet and correspond with Thomas Kosten at Yale, the lead researcher on the vaccine's development). The cocain vaccine involves a series of inoculation shots that render the body immune to cocaine - ingesting it produces no effects (the user gets no "high" from it, and also cannot overdose), and the body flushes it out of the system. Developed as a treatment tool, it poses interesting policy questions as a possible condition of parole (because so many felons have a drug history), a condition of welfare payments (to ensure the recipients do not spend their welfare checks on crack or cocaine), or other things (admission into private colleges, employment as an air traffic controller, participation in profession sports, etc.). I'd be happy to forward a draft to those who are interested, and would love to correspond with others researching in the same area.

Thursday, February 03, 2005

Lawyer Liable For Failure To Research Unsettled Area Of Law

A new ruling from the Minnesota Court of Appeals holds that attorneys may be held liable for failing to protect a client's interests with respect to an unsettled area of law. Click on the title above to read the court's opinion.

Wednesday, February 02, 2005

Taster's Choice and the Jury's Choice

You probably already saw this, but just in case, click on the link to see the story about the large jury award given to the guy whose face has been on Taster's Choice labels ever since he was young and handsome-ish. You know, my older sister was teaching a class to a group of corporate trainees one time, and teased one of the guys for looking like the Gerber Baby (the baby on the Gerber labels) - and the guy got really upset and asked her who told her about this, because he WAS, in fact, the Gerber baby. Here's a collection of news photos from the Taster's Choice stories...

Former model Russell Christoff holds a Taster's Choice package at a news conference in San Francisco on Tuesday, Feb. 1, 2005. A jury has awarded $15.6 million to Christoff, whose image was used for years without his permission on Taster's Choice coffee labels. Christoff, a former model from Northern California, posed for a two-hour Nestle photo shoot in 1986 but figured it was a bust until he stumbled across his likeness on a coffee jar while shopping at a drug store in 2002.
(AP Photo/Jeff Chiu)
If it's worth THAT much....
Maybe I can find a lawyer who will help me pursue a claim for this unauthorized use of my likeness in advertisements a few years ago....

More on Edward Tufte and Problems of PowerPoint

A few people have commented to me in person about my refernce to Edward Tufte's book The Cognitive Style of Power Point, which convinced me to never use it again in teaching (not that I was using it anyway, but now I feel strangely validated). His website,, has lots of great materials (including tips for students on resume design), but I thought I'd offer some of the posts that turned into sections of his above-mentioned book. I really recommend the book(let) (it's only $7), and I'm happy to circulate the copy I ordered to other people at our school. "Read the full post" has some interesting links.

Click here for a good thread discussion about Power Point parodies. Click here for the famous Gettysburg Address parody, and here for the creator's commentary. An interesting thread on the 2003 New York Times article "Power Point Makes You Dumb" is here.

Click here for a discussion of the mythic numerology of presentations often incorporated into PowerPoint presentations. One example is the purported "6x6x6" rule:
Use no more than six words per bullet, six bullets per image, and six word
slides in a row. Any more words per bullet, and you don't have a bullet. More
than six bullets per slide are difficult to read. By the end of six text-filled
slides you have been talking for about 10 minutes without a visual."

Tufte's response:

"The 6-line-only rule seems to come up in witless PP presentations on how to make witless PP presentations. Here is the full 666 rule in action, the Haiku Rule for presentations:"(his book notes that we insult our audiences with presentations following a conginitive style normally used for 6-year-old beginning readers)

Here is a great link for a chapter in his forthcoming book, Beautiful Evidence, entitled "Links and Causal Arrows: Ambiguity in Action". Law students should find it to be a good exercise in analytical skills.

The Best Part of Being a Law Professor...

I posted earlier about my least-favorite part of being a professor (grading exams -not because of the tedium, but because it's discouraging). But this week I had one of my favorite parts of the job: a student (3L) dropped off a copy of the academic journal that just published her article, plus a thoughtful thank-you note. I had the opportunity to help her with it (and the publication or "shopping" process) a little bit last spring. It's really rewarding to see students succeed. As a practitioner, she will have the credential of being "published" for the rest of her career. I feel deeply indebted to professors who helped me when I was in law school (with advice, or encouragement, or with my publications); I realized at some point that I couldn't repay them, but I could pass it on. And that's one of the best parts of the job, I think.

Tuesday, February 01, 2005

Farnsworth Dies...

One of the most famous law professors in the country, Allan Farnsworth of Columbia University, passed away Monday at age 76. He was truly an intellectual giant. Click on the title for the obituary from the New York Lawyer. Click here for the Jurist obituary, which has more links. You can visit his Columbia faculty page here for more of his career accomplishments.


Monday, January 31, 2005


This was one of my favorite pictures so far about the Iraqi elections...I wonder if people here will color their fingertips as a show of celebration...or if Iraqis will do this as part of their annual voting ritual. It's definitely cooler than "I voted!" stickers.

(the photo points to Dakotapundit)

(And click here for my earlier post about the Iraqi elections) Random memory association: I went to a high school where it was actually fashionable ("cool") to show up in school with ashes on your forehead on a certain day at the beginning of Lent - a lot of symbolic value (history, faith, community, and the fact that a few students has gotten up early to go to church before school). I'm no longer part of an ash-distributing church (for unrelated reasons, of course!), but the ashes were definitely "cooler" (had more powerful and multilayered symbolic value) than little red-white-and-blue stickers... these stained fingertips remind me of the ashes a little bit (in the good sense). They just tell a whole story, really capturing a significant moment in history.

Interesting New Article about São Paulo

Click on the post title for the link to the Jan 27 Economist. Many of my readers are friends who share my voluntary connection to Brazil, and might find this interesting.... it also has some interesting history about the growth of the city in this century, and how various public policies ahve affected the conditions there. I pulled an excerpt from the article I thought would be interesting for my federalist law students....

"Brazil's federal system does not provide for metropolitan
government. For example, while the municipality manages the city's bus network,
the state runs its trains, the metro and inter-city buses. The system links the
city to satellite municipalities, but moving between these is a nightmare. This
cuts people off from potential jobs. Likewise in health: federal funding goes
straight to municipalities in accordance with their populations, but services
are not co-ordinated."

Rapeseed and Global Warming?

A farmer spraying his rapeseed field in Germany with pesticides. Growers of
rapeseed, one of the primary sources of cooking oil, have discovered their crop
has a new calling at petrol stations. Heated to a high temperature, it becomes a
biological form of diesel that emits only a fraction of the carbon dioxide.
(AFP/DPA/File/Peter Foerster)

Now, Execs Pay for Firms' Wrongdoing

This is an interesting article about corporate executives being personally liable for wrongdoing by their corporations. It's an interesting development in our law; corporate liability was a necessary development to shield or protect investors, who before that were discouraged from investing in useful business activities because owners were held personally liable for its liabilities (mostly torts and contracts, back then). But the protection of owners from liability beyond their actual investment seems to create higher agency costs with wayward managers. When I was at the Attorney General's Office (in CT, before this position), one of the cutting-edge areas of environmental enforcement was "responsible officer/manager" liability. The corporations themselves often operate through a series of "shell" or holding companies, and the managers (often entrenched because of their holdings of corporate shares) had little incentive to avoid dumping and other environmental wrongdoing - but this trend addresses that.

College Expels Student Over Viewpoint in Paper

This is a shame. I had a friend in college who had something similar happen to him; decent student, good grades, but they tried to keep him from graduating during his last year because a few powerful professors there disagreed with something he said in a philosophy paper.

I cannot find any news articles where LeMoyne College responds to the accusation - if anyone does, please post it in the comments.

A Seldom-Discussed Problem with Legalized Prostitution

Click on the title to read the article (about unemployment benefits in Germany being denied to woman because there were jobs available at the local brothel). I worked as a Legal Aid lawyer for three years and spent most of my time doing Social Security Disability cases. There were many hearings where the Social Security Administration was denying benefits to someone with no job skills and some physical maladies because "they could work as a dial marker or a potato chip counter." (No kidding - these are real entries in the Dictionary of Occupation Titles, and favorites for disability examiners, who seem to think there are thousands of such positions open in every city).

I've heard and read many arguments for and against legalized prostitution (personally, apart from moral concerns, I think prostitution in general exploits female illegal immigrants), but I hadn't considered the possibility that it would mean adding the "world's oldest profession" to the Dictionary of Occupational Titles, which would mean Social Security Disability claimants would have the burden of proving they were physically unable to perform this job. Ugh.

Readers who share my intense Puritanical dislike of prostitution can click here to get rankled by the Economist's coverage of a new prostitution resort planned in Nevada with a museum and gift shop. From the story: "George Flint, head of the Nevada Brothel Association, insists that a trip to the Mustang Ranch could be 'just as important as driving to Mount Rushmore'.” I guess I haven't done that yet, either.

Sunday, January 30, 2005

Kerry & His Supporters Lose Second Election in Three Months...

I'm neither a Bush-Worshipper nor a Bush-Hater, but folks, 76% voter turnout is not a sham election. I don't care what the people at Daily Kos and Talk Left may say. Kerry has already been on the news insisting that we "don't overhype" this. I hope people here will paint their fingertips blue tomorrow as a show of support and celebration for the people who had their first real election in a generation (and one of the first Arab elections where women could vote anywhere).

I don't mind Democrats holding the administration accountable for any real acts of wrongdoing, but they undermine their credibility when they call a good thing "bad" just because it looks good for Bush. This was a better turnout than most industrialized democracies usuall have in their elections - and the Iraqis voted in spite of death threats from insurgents.

It's really petty for critics to naysay the election because of the intense security offered by U.S. troops for the event. If we hadn't done this, and there was a bloodbath or a low turnout, the same people would have lambasted the administration for forcing an election and not making the country secure. Kerry opined that Iraq is less safe today than it was while Saddam was in power. He's being contradictory - first, the election is not truly legitimate for him because we made the country so secure, and then he criticizes the Administration for not making it secure enough. I don't get it. The Bush-bashers seem genuinely disappointed that the vote went well, that no bloodbath occurred, and that the turnout was really tremendous. Sorry to let you down, guys.

I know voter turnout was low in some Sunni neighborhoods - either because the people were more afraid of insurgents there, or because they resent the idea of democracy. It's sort of like the MTV audience in America - don't vote, don't matter. Every democracy has pockets or groups that choose to marginalize themselves by not participating or voting.

Friday, January 28, 2005

More Recommended Reading...

This week I read two books (one was short), and recommend them both. Thomas Friedman's Longitudes and Attitudes is very informative, insightful, and reflective about Middle East politics, globalism, and American foreign policy. He is a regular columnist for the New York Times, travels frequently around the Middle East, and has interesting things to say. His liberal vantagepoint comes through (which I don't mind, except when he briefly discusses religion and tries to tell me how various religions should modify their belief systems to be more ecumenical, a clear sign that he still doesn't "get" the possibility that some reasonable people could still believe in divine revelation), but the book was finished before we invaded Iraq - and it is really interesting to hear how a prominent liberal was talking back in 2002 about what we should be doing there. Open-minded conservatives may feel vindicated when they read it (close-minded people usually already feel vindicated, I've found), but there is still plenty of material to challenge anyone to rethink some of their ideas. I really found it thought-provoking.

The book(let) I was really excited about, though, is The Cognitive Style of Power Point by Edward R. Tufte. He articulates many things I've been feeling intuitively for some time, but for which I could not find the right words (actually, I simply don't possess his expertise in cognitive theory and design, so I could offer nothing more than amateur hunches). I think I may never use Power Point again. He has a convincing argument (I thought it was, anyway) that Power Point purges 80% of the important content in a presentation, and bores the intelligent people in the audience, just so speakers feel less jittery because they have a colorful outline to read from during their talk: "The short-run convenience for the presenter comes at an enormous cost to the content and to the audience." The real treasure of Tufte's book, though, is not his sound bites, but the intense graphical examples he uses, dissecting classic slide presentations from meetings at NASA, sales conventions, etc., and explaining how they distort the information and generate shallow group-think. He has me worried about students who like it. You can get an idea of Tufte's arguments by visiting his website,

"Power Point allows speakers to pretend they are giving a talk, and audiences to pretend they are listening."

Thursday, January 27, 2005

I Love You Like Beans...

Japan's toy maker Takara employee Nozomi Saeki displays
bean plants with messages such as 'Good luck,' sprouted
from a can. The plants also bloom to read 'I love you.'
(AFP/Yoshikazu Tsuno)

New Tort Reform Bill in Congress

Tort Reform Advocates are happy with the new legislation introduced in Congress to impose sanctions on lawyers for filing frivolous lawsuits. I generally disagree strongly with the tort reform folks (my most recent post discusses Judge Posner's comments, click here), but from what I've read, this proposed bill is more moderate - it mostly limits attenuated forum selection (which is fine, I think - although it inconveniences plaintiffs who live near a big facility (read employer) of the defendant, and perhaps they should create a small exception for that case (except that voir dire allows the lawyers to nix jurors with family members who work for either party). And many states already have provisions for sanctions in cases of vexatious litigation. I'd rather see these types of limitations than "caps" on damages, which I view as unfortunate regulatory interference in a market, akin to rent control.

Pro-Life Activists Herald Settlement in Abortion-Breast Cancer Case

Pro-Life groups are heralding one of their first litigation victories, a settlement obtained from an abortion clinic to a patient whom they failed to inform about the increased risks of breast cancer posed by abortions during the teenage years. For a few other (biased) reports besides the Washington Times link in the title, click here and here. Activists on both sides of the abortion debate are likely to react strongly to this, so here is my attempt to put the facts about this case in perspective…

1) This was a settlement, not a jury verdict (the World Net Daily article blurs the distinction). The fact that the judge signed the settlement as an order doesn’t mean the judge thought the plaintiffs should win; judges always sign judgments to settle cases so they can be cleared off the trial docket, except where the settlement involves a promise from the plaintiff to withdraw the case completely. The latter is less likely where the defendant appears to be headed to bankruptcy court, meaning the settlement will be difficult to collect if it is a mere private agreement and not an order entered by a court.

2) The plaintiff’s case is based mostly on a scientific study published in the mid-1990’s indicating that abortion raised the risk of breast cancer in women – 150 times higher for girls under 18, and much more for those with a family history of breast cancer. Unsurprisingly, the study itself remains very controversial, being hotly contested by pro-choice groups. Its authors, however, were doctors at a Seattle Cancer Center (i.e., not just pro-life activists), and was published in the Journal of the National Cancer Institute. I’m not attempting to vouch for the accuracy of the study, just its basic legitimacy as genuine scientific inquiry – it’s not pro-life propaganda, but it should still be subject to scientific scrutiny, like any other medical research. Let the medical establishment do further research, I say, as long as neither political side gets to silence the conclusions.

3) The girl was 15 when she had her abortion, stated on her clinic paperwork that her mother, grandmother, and an aunt had all suffered from breast cancer, and still the folks at the clinic told her nothing about a possible heightened risk of cancer for her. This seems odd given that doctors now are so afraid of malpractice liability that they normally are quick to disclose even possible risks. Each time my wife had a baby, her doctors would tell her about one or two new articles in medical journals indicating a possible connection with this or that and various ailments for the mother or child, even when the study was still new or controversial. I’m surprised the clinic wouldn’t have bothered with some simple disclosures like that.
The girl did not acutally get cancer, but she is very worried about it. (which means they may have had trouble proving damages if they'd gone through a trial).

4) The abortion clinic in this case actually went out of business last year (with a reported $150,000 in unpaid bills), and their lawyer says the decision to settle was made by the insurance company to avoid the costs of going through a full trial, which they maintain they would have won. I believe them; I don’t know who would have won. But the case really settled because there’s no more money coming in to pay their lawyer to go ahead with a trial, to hire experts to contest the cancer report, etc. – not because of the merits.

5) All that being said, law students shouldn’t discount the value of litigation as a policy advocacy tool (for better or wrose). Civil litigation (not government regulation) removed Joe Camel billboards from the area surrounding the junior high schools. For all the flack about the McDonald’s “fat” case (partially revived this week by the Second Circuit), as soon as the first suit was dismissed McDonald’s introduced a new line of GREAT salads (much improved from their plastic cup of white iceberg lettuce they used to hand you) and alternative Happy Meals with fresh fruit, etc. Only one case against an airline over deep vein thrombosis has settled so far (from what I’ve read) out of the thousand or more that have been filed, but all the airlines have started giving warnings to passengers on overseas flights about the risks of DVT and the need to move around or do certain exercises during the flight. I like the new McDonald’s salads (and have no choice about eating there, because I have young children), and I’m hoping that the airlines will think twice about shrinking the economy class seats any more than they already have in light of the potential DVT liability (I’m 6’4” and really notice the ever-smaller seats in economy class). I’m sure the companies felt like victims, but I think the world is a better place because of these lawsuits –many of us have already benefited (yeah, I know McDonald’s has to pass their litigation costs through to their shareholders or customers, but that’s a pretty thin spread when you serve “billions and billions”). More recently, lawsuits have started to pop up around the country against alcohol manufacturers for marketing their products to irresponsible youth and contributing to drunk driving accidents. The courtroom provides a different set of incentives for people than picket lines and protests. If the (still controversial) cancer study about abortion turns out to be corroborated by other scientific research, I think patients should get to hear due warnings. A wave of litigation could follow if they don’t.

I like private litigation as a tool for social change (better than old-fashioned civil rights litigation, in fact). The common law tort system has built-in elements that are more free-market based and democratic, in some ways, than command-and-control regulation by unelected "experts" at an administrative agency. The tort system allows more room to consider any exceptional equities involved with particular parties, more room for private insurance markets to step in and offer financial incentives to reduce the risks of harm, and a financial incentive (plaintiff's contingency fees) to screen out the ridiculous. This is why I've argued for gun maker liability - I'd rather private litigation than escalated government regulation, which is often the only alternative. If it goes too far, the jury can say, "Nay." The private companies can decide for themselves how to manage their risks - whether by reduction, spreading, or viewing it as a straight business cost.

The other thing I like about civil-litigation-as-policymaking: the advocates have to engage in a lot of sharp, analytical thinking every step of the way, whereas the usual political route is tainted with shouted slogans, misleading propaganda, and personality cult/popularity contests. Taking these grand social battles into the courtroom forces the advocates to research and think through (carefully) issues of standing, jurisdiction, cognizability of harm, causation, relevancy and reliability of evidence, and the best remedies (damages, injunctions, etc.). This is a good thing, because the policy results can be more well-informed and fine-tuned.

Tuesday, January 25, 2005

Supreme Court: Attorney Fees Are Taxable Income For Plaintiffs

Click on the title to read the opinion, which is about plaintiff lawyers' contingency fees (not cases where fees are awarded on top of damages). I think both sides of the argument on this have merit; on the one hand, the funds are supposedly going striaght through to the attorney, so the plaintiff was not enriched by this amount; on the other hand, historically the entire award was considered income. Probably the strongest argument, though, is that Congress in 2004 modified the Internal Revenue Code to specify that these contingency fees are no longer part of the plaintiff's adjusted gross income, and the law was not retroactive (and these cases arose before the law was passed).

New For Iraq

The Army is preparing to send 18 of these remote-controlled
robotic warriors to fight in Iraq beginning in March or April.
(AP Graphic)

New Federal Appellate Rulings For Street Preachers

Two federal appellate courts issued rulings today (Tuesday) pertaining to the rights of street preachers. (Thanks to How Appealing for noting them)...

The Fourth Circuit decision, Moore v. City of Asheville, involved a North Carolina carpenter who travels around doing street preaching; in March and April 2003, he twice received tickets/fines for violating the city's noise ordinance. He paid the fines at the time (the first was $50 and the second $100, because he was a repeat offender), and then waiting a long time before going to court to protest this infringement on his free speech rights. He waited too long; the time had elapsed for state administrative review of his fines, so he went into federal court. The Circuit Court's opinion does not address his free speech rights, but rahter the procedural question of whether a federal court can entertain a case about state or local fines when the petitioner let the time elapse so he could no longer pursue them through the normal state-level channels. He cannot (he lost). Lesson to street preachers: if you get fined or ticketed, and think you have a legal case to challenge the fine, do it right away - file an appeal with the state's administrative review system. You snooze, you loose, basically. Sorry.

The Sixth Circuit decision is more interesting (Parks v. City of Columbus). In this case, the city of Columbus, Ohio, licensed a private entity, the Arts Council, to hold its annual Arts Festival along Civic Center Drive (it was a permit to hold a block party; they were also licensed to sell alcohol). Significantly, these permits are always "non-exclusive" - meaning the event hosts must allow other citizens to use the sidewalks, etc. Mr. Parks is a traveling street preacher/evangelist to goes to public events to hold evangelistic signs, distribute leaflets, and talk to people. He entered the area of the Arts Festival while it was underway wearing a sign with a religious message (the case record does not indicate what the sign said. An off-duty policeman, who was wearing his uniform and identified himself as an officer, had been hired by the Arts Council as a security guard, and he ordered Parks to leave the area; Parks obliged grudgingly. He later sent a letter to City official protesting what happened, and he was rebuffed - they said he had no right to be there. A federal district court agreed; the Sixth Circuit disagreed and reversed the lower court's decision, holding that there was no compelling state interest to justify the restriction of sppech in this case, that the permits were non-exclusive and therefore Parks had a right to enter the area, and that the action of the off-duty but uniformed officer constituted state action. Lesson for street preachers: city festivals might be fair game, even if someone tells you they aren't. But it depends in part on the types of licenses or permits issued in that particular city, and the reason you were asked to leave. If Parks had been disrupting the Festival itself, the outcome would have been different.

Monday, January 24, 2005

Interesting Development in Chinese IP Law & Bioengineering

I picked this up off a RSS newfeed and thought it was interesting - it's a very "free market" way of legal thinking for China...

Saturday, January 22, 2005

Bifrucation & Reverse Bifurcation

This is a request for input or collaboration, really. One of my current research projects (hopefully a forthcoming article) is focused on the role of bifurcation in both civil and criminal trials (where phases of the trial, like guilt/liability and damages/punishment, are done separately, usually to avoid prejudice or for strategic reasons). I am mostly interested in the developing area of reverse bifurcation, where the traditional order is reversed - that is, in a civil case, the judge has the jury decide the damages first before impanleing a second jury to assess liability, or in a criminal case, where the court determines the sentence first and then has a trial to determine actual guilt. There's very little - if any - serious scholarship published on the latter phenomenon, although there is evidence that courts are experimenting with it. I'm particularly interested in interdisciplinary discussion of these procedures (economics, psychology, decision theory, game theory, etc.), but would also be interested in anecdotal evidence or experiences from practitioners.

If any of my readers are also researching in this area, or have suggestions for good material, or simply know a lot about it and have lots of well-informed opinions, I'd be much obliged. Thanks!

Friday, January 21, 2005

Homeless Guy Caught Attending High School?

OK, on certain days of the week I can be a real bleeding-heart, but this story seemed interesting to me. First, there's the "wish-more-of-our-homeless-wanted-to-go-back-to-school" thing; part of me gives the guy credit for sitting in classes, blending in, etc. instead of locking himself in the bathroom at McDonald's for hours at a time, or commandeering an entire bus stop for himself. Second, I wondered if this would have worked better if he would head for a major university campus instead, where there might be tens of thousands of people his age with whom he could blend (except that this must have been tried enough already for Universities to require ID cards for almost everything now). Third, this presents an interesting philosophical question about what "integration in society" really means. A man can be in the midst of a crowd, doing the same activities they do, attend class lectures, walk in the hallway between classes, use the gym locker room, dress like everybody else, and still be "off grid" or miles away from "belonging" there. I understand that he clearly didn't belong there, but he certainly was "integrated in society" in some meaningful sense of the word. The question is whether this would be a good thing to have for more homeless people do or an undesirable thing. He harmed no one. I'm biased, of course, because I'm an educator, but it seems that education might be a good pastime for those homeless who can handle it. No?

Francisco Serrano, 21, attended
classes and slept at a Minnesota
high school he used to attend.

Wednesday, January 19, 2005

China Puts Americans on Trial for Media Piracy....

This is a turnabout: after years of the U.S. complaining that China does nothing to stop rampant piracy of U.S. media productions, China starts prosecuting Americans. Ironic.

(thanks to Legal Reader for posting this first...)

Saturday, January 15, 2005

More About Israelis Voting in Iraq's Election

I understand that it would be galling to jihadists for Israelis to be a major voting block (at least 75,000, but possibly much more) in Iraq's election, but I still think it is unreasonable to exclude them when people in all the other countries get to vote. Excluding them is a way of saying, "Jews are not real Iraqis," even though it appears there were over 130,000 Iraqi Jews who fled to Israel a generation ago.

It is an inherent risk in a democratic election - especially one that allows voting from outside the borders, as most do - that some feared foreign interest could get a share in the vote and undermine the purported national interest. There was a risk (small, but still a risk) when our country was founded that "Tories" or loyalists could vote to turn America back over to its colonial rulers; or that millions of Muslim-American voters today could force a change in our foreign policy (like our support of Israel). The risk that Iraqi Israelis would engineer something crazy, like annexation, is even more remote.

But this risk carries a benefit as well, especially in an era of globalization. Healthy freedom for immigration, combined with democracy, means that there is a voice in the electorate calling for good relations with other countries. It stabilized the Middle East for several years after Anwar Sadat made a peace treaty with Israel at Camp David. It would greatly stabilize the Middle East if the country that is potentially the strongest militarily and economically (Iraq) could engage Israel seriously. In understand that Al-Qaeda would hate this. But maybe this would give them an incentive to "get out the vote" on their own, instead of threatening to sabotage the election. Our country was deeply divided in the last election, but the benefit is outstanding voter turnout, and a challenge for the losing party to convince more people to vote for them next time.

Israelis Could Rock the Vote in Upcoming Iraqi Elections

This is a bizarre angle on the Iraqi elections, which I have not seen covered in the MSM here...(this is from the Jerusalem Post). I had mixed reactions to this: I think it is great that Christians and Jews can officially vote in the Iraqi elections (a hopeful sign of progress), and that they are allowing remote voting around the world (I hadn't heard that! MSM only talks about the infeasibility of elections inside the country). I also did not know there were so many Israelis with ethnic ties to Iraq (I knew there were some, but I didn't know it was this many). But I think it is terrible that the Netherlands has a voting station and Jerusalem does not. It's hard to interpret this as anything but anti-Israel and antisemitic. Israel is the only established democracy in the Middle East, and the Iraqis living there should really have something to contribute to the establishment of a similar democracy in their original homeland. And it's fascinating to think that Israel could be a major voting block in this landmark election, if there was a voting station in Jerusalem. This is from The Post:

Israeli descendants of Iraqi Jews are being offered the possibility of voting in
the first free democratic elections in Iraq, the Independent Electoral
Commission for Iraq (ICI) has announced. The elections, which are due to take
place from January 28 to January 30 at 14 polling stations in Iraq and around
the world, are open to all ethnic Iraqis, the ICI said....Israeli turnout is
likely to be low – the closest polling station to Israel is in Amman, Jordan.

Some 130,000 Iraqi Jews immigrated to Israel after the establishment of
the state. Today, there at least 75,000 Iraqi-born Israeli citizens but the
number of eligible voters – including their children – is much higher. Iraq's
Out-of-Country Voting (OCV) committee decided not to open a polling station in
Israel, whose population of eligible voters is much greater than other countries
with polling stations, for example, the Netherlands.

Asked why Israel doesn't have a polling station, [Farid] Ayar, whose organization [ICI] is the independent body of Iraqi citizens that determined the stipulations for voter eligibility and the location of the polls, said it "is because Iraq has no relations with this state, and we don't recognize this state." . . . More details may be found on