It's me or the Kidney!

Are donated organs community property?  That is today's legal question for enquiring legal minds.

We've all heard about the post martial spat over who gets to keep Fifi the poodle.  What about when one spouse demands the return of a transplanted organ?

Believe it or not, that's the question in a pending New York divorce action.  I personally found it so hard to believe I read several online reports to verify this strange case.  In the divorce action, the husband, a medical doctor, took care of his wife while her kidneys were failing, including finally donating one of his own kidneys.  After the successful transplant operation, the wife's health dramatically improved--enough to take karate lessons.

She injured herself during the karate lessons but the good news was that she promptly began physical therapy for her injuries.  The physical therapy was apparently very thorough because the wife allegedly had an affair with the therapist.

As part of the divorce, the husband now wants his kidney returned or, in lieu of a used body part, 1.5 million dollars.  I suspect the law is against him.

Be very careful when you make the decision to donate body parts to loved ones.  If there's a falling out, and you want it returned, you may not have a leg to stand on in court.

Posted by Joseph R. McFaul on Thursday, January 08, 2009 at 12:00 Comments Closed

ADA in need of tinkering

ADA needs some tinkering.

The Americans with Disabilities Act was designed to allow more access to the hundreds of thousands of Americans with handicaps.  It protected employees with disabilities and improved disabled access to accommodations, a particular problem. Curbs, doorways and other obstacles often limited access to people in wheelchair, for example.  People with disabilities often could not operate cars or have easy access to public transportation.  The barriers were often so severe that people were practicably restricted to their homes.  Any routine outing required extensive logistical planning. 

In 1990, Congress enacted the ADA to increase disabled persons' access to public accommodations.  Generally, the Act has been a success.  Relatively inexpensive measurers were undertaken to increase access in all newly constructed restaurants, hotels and other public accommodations.  Retrofitting also served to remove barriers.

That is not to say the Act has been completely successful.  Barriers remain.  Unfortunately, the Act has also spawned some cottage industries relating to handicapped access.  The ADA accessability guidelines are often offered as a the premier example of regulatory overkill, exceeded in arcane technical detail only by IRS regulations.  Unwitting hotel, restaurant and store owners can easily run afoul of the regulations.  An overlooked regulation can result in an unwanted and expensive lawsuit. 

But why go through the time and effort to file a lawsuit because the faucet is two inches too high?  The ADA has an attorneys fees clause. 

Even if actual damages are non-existent, a successful plaintiff can recover attorneys fees under the ADA.  Once attorneys fees are available, a suit complaining that the craps table are too high in the casino can be profitable.  There is no intent to ever try these cases, a very good living can be made off the settlements, especially against small business owners who can be financially ruined by litigation expenses. 

The story last linked notes that federal judges are finally scrutinizing these cases and either denying relief altogether, denying attorneys fees to the putative plaintiff or even deeming the plaintiff a vexatious litigant, barring further frivolous lawsuits altogether.  As an attorney representing defendants subjected to this abusive litigation, I say the judicial scrutiny is long overdue and should be expanded to other private attorney general statutes as well.

Posted by Joseph R. McFaul on Tuesday, January 06, 2009 at 19:30 Comments Closed

What #*^&%$# Sub-Prime Crisis?

Via Volokh Conspiracy, a witness and his attorney were sanctioned $29,000 for outrageous conduct over a two day deposition.  The deponent's expletive laced diatribe against the questioning attorney (with the patience of  a saint) can be read here.  The deponent foolishly invited the attorney to take him to court if he objected to the obstructive answers and the foul language.  That attorney accepted the invitation and the District Court judge predictably threw the book at the witness.

What kind of lawsuit could possibly give rise to such outrageous behavior by the particpants?

Here's the judge:

Plaintiff GMAC Bank administers residential mortgage loans, and Defendant HTFC Corp. takes loan applications and sells residential mortgage loans to lenders, such as GMAC. GMAC and HTFC entered into a contract for the sale of certain loans. GMAC claims that HTFC breached the contract by selling it certain loans that were improperly underwritten and not investment quality, and refusing to repurchase them, as required by the contract.

Yup, the susbprime mortgage crisis, a legal growth industry.

Posted by Joseph R. McFaul on Tuesday, March 11, 2008 at 00:00 Comments Closed

The Law Versus Online Hate Speech?

I am pretty close to a First Amendment absolutist. 

Little in the away  of speech regulation should permitted.  I make exceptions for reasonable  time place and manner restrictions intended to protect the equally valuable right of peace and quiet.  I also make exceptions for "captive" audiences and speech that impsoes burdens on the listener.  No picketing of residences for me.  No email spam.

The internet, however, does not have the same time place and manner issues concerns that commonly arise in the real world.  So I'm more in favor of anything goes on the internet.  Hate speech is fine as long as it does not cross the line into criminal conspiracy to commit crimes.  Similarly, speech that is defamatory or fraudulent can be regulated on the internet as it already is elsewhere.  E-mail is, and should be, subject to different rules.

I disagree therefore that internet hateful speech should be regulated to any degree.  I see a plain difference between an ISP server's host of a chat room and a newspaper's publishing of a defamatory letter.  I'd be more sympathetic to newspapers if they printed all letters to the editor, but I don't; think many would be inclined to do so.

The Christian Science Monitor, on the other hand, proposes broad regulation of internet speech.  The Monitor is most concerned with cyberbullying, making this point:

The most notorious case is the cyber-bullying of Megan Meier, a 13-year-old girl from a St. Louis suburb. In 2006, Megan, a troubled, overweight adolescent, became embroiled in an intense, six-week online friendship with "Josh Evans" on MySpace. After "Josh" turned against Megan and posted a comment that, "The world would be better place without you," the girl hanged herself. Later, when it became known that the fictitious Josh Evans was Lori Drew, a neighbor and mother of a girl with whom Megan had argued, there were calls for criminal prosecution. But the St. Charles County Sheriff's Department didn't charge Ms. Drew.

And I'm not sure it should have.  The conduct is reprehensible, and potentially qualifies as a tort.  That doesn't mean cyberbullying and tortious invasions of privacy must be addressed by increased speech regulation.  Much speech and conduct in our daily lives is truly immoral and may lead to legal ramifications.  Laws limiting speech are unlikely to be effective and far more likely to deprive proponents of unpopular viewpoints of their last platform of expression.  I'd rather have then on the internet than marching down my street, bullhorn in hand.

The anti-defamation league weighs in, on my side:  Combat hate speech with more speech.  The bright light of attention, mockery and facts all defang hate speech more effectively than censorship.

Posted by Joseph R. McFaul on Monday, March 10, 2008 at 00:00 Comments Closed

Former USA Today Reporter Incurring Daily Fines in Anthrax Case.

You may remember the anthrax scare a few years back.  Almost immediately following the September 11, 2001, terrorist  attacks, the mailed weaponized anthrax envelopes killed five people and made an entire nation even more jittery.

The crime was never solved, but the DNA of the anthrax indicated it was a domestic "inside job" because the anthrax appeared to be similar to the biological weapon produced by the U.S. Army.  Suspicion fell on former Army Chemist Lee Hatfill, who was mercilessly trailed, hounded and investigated.  He was never charged.

He sued and subpoenaed several reporters, including former USA Today reporter Tony Locy in an effort to obtain the names of the federal investigators that leaked his name to the press.  The other reporters' sources released the reporters from any confidentiality pledge and agreed to appear for depositions.  Locy refused to identify her sources and now faces escalating fines of up to $5000 per day.  Those fines cannot be paid by USA Today.  Currently, there is no federal reporter's shield law, but bills have been submitted in Congress to create one.  These will be too late for Locy.

These "reporter's confidentiality" cases present difficult issues.  Generally truth, and access to the truth, is the goal of legal proceedings.  Sometimes it is important that another goal of the legal system be protected-the value of settlement for example.  When necessary to achieve these goals, certain evidence is not admissible-evidence of settlement discussion, for example.  The First amendment goal of freedom of the press is an important goal, but generally, the press is free enough o pursue its own quest for truth that a reporter's shield would be needed only in limited cases.

Posted by Joseph R. McFaul on Sunday, March 09, 2008 at 00:00 Comments Closed

Homeschooling ban in California?

No, contrary to rumors, California has not banned homeschooling.  The court of appeal held that homeschool teachers are required to have state credentials.

Homeschooling has long been a parent's last right of veto over any perceived deficiencies in the California public school system.   In an opinion already attracting hysterical responses, the court merely held that California law requires students to actually attend school.  If that school is homeschool, the students are to be taught under the supervision of credential teachers under programs supervised by the school district--a requirement mostly observed in the breach.  This failure to enforce the law has led homeschoolers to think they were entitled to be unregulated.

The opinion  has far reaching ramifications for homeschooling as an alternative lifestyle, general education requirements and both private and public education.  Expect to hear more from the Homeshcooling Legal Defenses Fund.

Posted by Joseph R. McFaul on Thursday, March 06, 2008 at 00:00 Comments Closed

Its National Grammar Day!

Today is National Grammar Day.

If that headline grated on your nerves like fingernails on a chalkboard then you should join the Society for the Promotion of Good Grammar and visit its blog.

For fun, your can carefully read the congratulatory letter from President Bush.  I'll bet that one was carefully scrutinized by Mrs. Bush.

Posted by Joseph R. McFaul on Tuesday, March 04, 2008 at 00:00 Comments Closed

Exxon Valdez Punitive Damages at Supreme Court

Last week, the Supreme Court heard oral arguments on the punitive damages award arising from the 1987 Prince William Sound Exxon Valdez spill.  Exxon has already paid about $500 million dollars in compensation to injured parties and over 3.4 billion dollars in cleanup costs, fines penalties and other expenses.  The original 5 billion dollar punitive damages award was previously reduced to 2.5 billion dollars.

It is that award that is now at issue.  The case raises three issues regarding punitive damages.  First, earlier Supreme court precedent (BMW v. Gore) limits punitive damages to a relatively small multiple of actual damages.  Is the 10 to 1 ratio (depending on the bookkeeping) here too high?  Second, is there a different ratio when the compensatory damages themselves are already so high, capping the punitive damages at some absolute limit?  State Farm v. Campbell seem to suggest there is.  Finally, punitive damages are not traditionally available in martime law, but might be under the Federal Clean Water Act.

The Supreme court could leave the 2.5 billion award in place, reduce it, or eliminate it entirely.

Disclosure: I worked very closely with the Coast Guard investigator assigned to prepare the Coast Guard's investigation into the Exxon Valdez disaster. I also peripherally assisted Mike Chalos and Joseph Hazelwood in the defense of Captain Hazelwood's Coast Guard license.  Joseph Hazelwood was condemned worldwide and even immortalized as the patron saint of the foul polluting  "Smokers" in the "hit" movie "Waterworld."  As Wikipedia notes, the causes of the grounding were more complex than depicted in the mass media.  There was plenty fo blame to go around.

A sympathetic portrayal of Hazelwood is here.

A little known immediate and heroic response to the spill is depicted here.  The image shows the Exxon Valdez hard aground on Bligh Reef.  Next to it is the tanker Exxon Baton Rouge.

When the tides were right, the Exxon Baton Rouge, was brought over the top of Bligh Reef.  The remaining 40 million gallons of Exxon Valdez cargo was transferred in a rpocess called "lightering" to the Baton Rouge, allowing the Valdez to be refloated, but done so that the Baton Rouge itself did not ground. The crews of both ships, the pilots and technical advisors aboard the two ships all worked in very hazardous conditions to keep a bad situation from getting much worse. The lightering was a superb display of seamanship in sharp contrast to the seamanship leading up to the grounding.

Posted by Joseph R. McFaul on Monday, March 03, 2008 at 00:00 Comments Closed