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...