Other
Noteworthy Cases 2003
Below are periodic
updates on selected cases affecting individual rights and individual
freedoms.
Lies,
Damn Lies and Statistics
What
a difference reality makes. Three weeks ago, a three-judge panel
of the U.S. Court of Appeals for the 9th Circuit unanimously told
us that California couldnt hold its constitutionally called
Gubernatorial Recall Election on Tuesday, October 7, 2003, because
"forty-four percent of the electorate will be forced to use
a voting system so flawed that the Secretary of State has officially
deemed it unacceptable and banned its use in all future
elections." The judges were objecting to Californias
continued regional use of punch card ballots and VotoMatic voting
equipment because, according to their decision, such methods are
so plagued with "inherent defects
that approximately
40,000 voters who travel to the polls and cast their ballot will
not have their vote counted at all." Fast
forward to Wednesday, October 8, 2003 or nearly eight million
votes later and exactly none of these judicial statements
are true...[more]
The
Robed Recall
Eight
Days, eleven judges, and thirteen double-spaced pages later, the
California Recall Election is back on again. Returned to its original
calendar date of Tuesday, October 7, 2003, by an en banc (or literally
"full bench") panel of the same U.S. Court of Appeals
for the 9th Circuit from which three other judges had, just a week
earlier, ruled the race had to be put off until March 2004 because
the use of VotoMatic punchcard ballots could hypothetically disenfranchise
voters violating both the federal Voting Rights Act and the Equal
Protection Clause of the U.S. Constitution...[more]
Constitution
Rolls Former Crimson Tide Coach Price
Every
American needs a good lesson in constitutional law even those
who limit their daily readings to the sports section. This spring,
Martha Burk got some legal schooling when she unsuccessfully ran
a very public, and lonely, protest against Augusta National Golf
Clubs constitutionally protected right to operate as a private
club under the First Amendment. Now, Former Alabama Coach Mike Price
fired from his multi-million dollar coaching position over
claims of drunken behavior got his constitutional lesson
this week when most of his $20 million lawsuit against the Crimson
Tide was dismissed on the states rights protections found
in the Eleventh Amendment...[more]
Three
Down, Many More to Go
Three
California trial lawyers, who reportedly made their fortunes shaking
down thousands of small immigrant-owned business owners through
the filing of frivolous lawsuits, have resigned from the state bar
after facing disbarment over alleged ethics violations...[more]
Sue
the Lawyers
“Enough
is enough.” That is the new message from corporate America. After
suffering through the deluge of class action attacks against corporations
that sell products ranging from hamburgers to medical equipment
to automobiles, corporate boardrooms are taking the offensive against
the increasing number of vexatious litigants...[more]
The
Criminalization of Responsibility:
Making Corporate Officers Guilty for the Acts of Their Employees
For centuries, the law in Western nations was guided
by the fundamental principle that an individual could only be prosecuted
and convicted of a crime if he willfully or knowingly committed
an unlawful act. Classic Anglo-American legal theory reflected
this core belief in its requirement that the state prove beyond
a reasonable doubt that the accused consummated the criminal offense
with both an actus reus (a criminal act) and a mens rea (a criminal
intent). Thus, criminal sanctions were never intended to punish
bad thoughts remaining unmanifested by action nor bad acts occurring
unwittingly or by accident. The former category was to be resolved
by a higher spiritual authority and the latter could properly be
resolved by the civil tort liability system...[more]
Justice
At What Price? The Sixth Amendment Right to Counsel
At
a long-delayed preliminary hearing held last week, a federal judge
ruled that Oklahoma City bombing conspirator Terry Nichols can be
tried on state charges alleging 160 counts of first degree murder
in connection with the 1995 bombing of the Murrah Federal Building.
Nichols was already convicted in 1997 of federal conspiracy and
involuntary manslaughter charges for the deaths of eight law enforcement
officers in the bombing. He is serving a life prison sentence for
his federal convictions because the jury deadlocked over whether
to give him the death penalty, and the judge, to whom the sentencing
fell, could impose no more than life without parole...[more]
Entire
9th Circuit Ducks Judge Reinhardt’s Ricochet, Could Hit the Supreme
Court Docket
A
deeply divided U.S. Circuit Court of Appeals for the 9th Circuit
last week refused to review a controversial ruling from a three-judge
panel led by Judge Stephen Reinhardt that held the Second Amendment
protects only a collective — rather than an individual — right to
keep and bear arms...[more]
New
Report Justifies Judicial Need to Continue to
Reallocate Fault in Product Liability Litigation
This
week, the U.S. Consumer Product Safety Commission (CPSC) issued
a notice saying that years after products are recalled or safety
warnings are issued, those same products continue to kill and injure.
Many consumer products deemed hazardous and included on the CPSC
list have previously received substantial attention because they
were recalled or addressed under government safety standards...[more]
McLawsuit
Reheated: It Doesn't Taste Any Better
The
McFatties are back. A month after a federal district judge dismissed
their class action lawsuit against McDonald's, a group of overweight
children and their parents filed a new complaint against the fast
food giant maintaining that Ronald, Grimace and the Hamburglar must
pay up for childhood obesity, high blood pressure, diabetes and
heart disease...[more]
Second
Amendment Showdown in the 9th Circuit Cloakroom
In
a new Second Amendment ruling issued by the 9th Circuit on Tuesday,
three of Reinhardt’s brethren, Judges Arthur L. Alarcón, Ronald
M. Gould and Diarmuid F. O’Scannlain, took the highly unusual step
of criticizing a fellow sitting jurist in a published legal opinion
for the entire world to see...[more]
GAO
Drops Lawsuit Aimed at Forcing Vice President Cheney To Disclose
Energy Task Force Information
It
has been 30 years since Watergate and a time when the public eye
closely watched a court battle between the executive branch and
Congress over disclosure of documents. In 1973, the special prosecutor
investigating secretly recorded conversations in the Oval Office
subpoenaed the tape recordings. President Nixon refused to release
them, asserting executive privilege and a risk to national security.
Some of the political backlash from Watergate resulted in the erosion
of the doctrine of executive privilege...[more]
The
Road to Democracy Starts at the Schoolhouse Door; Teaching our Children
Beyond the “Three Rs”
Gone
are simpler days when students were taught the “Three Rs” — reading,
writing and arithmetic. Today, the schools confront children with
complicated social algorithms involving issues such as dress codes,
bans on “junk food,” zero tolerance disciplinary policies, and political
correctness. Undoubtedly, these “educational” changes have come
at the expense of more objective lessons that might actually improve
academic performance. But, more importantly, the “new curriculum”
has sacrificed vigorous public education founded on free expression...[more]
The
Methodology of Frivolous Lawsuits
(The Short Version)
When
a federal judge threw out one of the baseless lawsuits against McDonald’s
last week, John Banzhaf, the blustery plaintiff’s attorney and George
Washington University Law School professor involved in bringing
the case, told MSNBC’s Dan Abrams, “You don’t think we’ll find some
judge somewhere…who’s going to buy it and let it go to a jury?
You may not like it…but we’ll find a judge…and then we’ll find a
jury.”
As
a justification for putting judges on the bench who will stop the
systematic abuse of our legal system, no further words are necessary.
Mr. Banzhaf, Esquire, is an unusual plaintiff’s attorney only in
the openness of his cynical exploitation.
McLawsuit
Deep Fried
Judge Dismisses Fat Case Against the Golden Arches
Eating
a Big Mac a day does not keep the doctor away — everyone knows that
… or, at the very least, should know that, according to a federal
judge in New York. A decision issued Wednesday by Judge Robert
Sweet threw out a multi-million dollar class action lawsuit filed
against fast food giant...[more]
Review
of Walter K. Olson’s The Rule of Lawyers:
How the New Litigation Elite Threatens America’s Rule of Law
A senior
fellow at the Manhattan Institute and author of The Litigation Explosion,
Walter Olson serves up an eye-opening, jaw-dropping, behind-the-scenes
look at how the self-anointed “Fourth Branch” has managed to infiltrate
every corner of America’s legal and political landscape. The author
paints in lurid detail an incestuous picture of the trial lawyers’
well rehearsed “three prong” strategy comprised of legal, political
and public relations efforts, bolstered by open checkbooks, lies,
deceit and, dare we say, extortion...[more]
Medical
Professional Liability Crisis Bleeds Across America
Get out the
tourniquet because the shark bites have America bleeding again.
From Pennsylvania to Florida to Texas, and most states in between,
victims of the shark (AKA trial lawyer) attacks are drowning in
the Litigation Sea. National headlines make it increasingly apparent
that a rise in malpractice lawsuits has caused a swell in professional
liability insurance premiums, with the current medical liability
crisis driving up health care costs and resulting in less access
to care...[more]
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