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OpenMarket: Law and Constitution

  • Tobacco Settlement Too Greedy and Venal for Even the ABA

    June 13, 2007
    Yesterday, I said that trial lawyers received $14 billion (not million, billion) under the 1998 tobacco Master Settlement Agreement (MSA), in discussing how that lucrative settlement has triggered copycat lawsuits by other countries against the tobacco industry. Apparently, I was off by a billion dollars.  The trial lawyers received $15 billion, not $14 billion, under the MSA, according to the American Bar Association Journal. The American Bar Association (ABA) has seemingly never seen a tort reform proposal it liked, and almost invariably takes positions that enrich lawyers as a class. So it's striking that not even the ABA Journal can bring itself to defend the MSA.  It recently ran an...
  • More Nigerians Sue U.S. Tobacco Companies for Billions

    June 12, 2007
    More states in Nigeria are suing American tobacco companies for billions of dollars. The suit began when one state in Nigeria decided to sue U.S. cigarette manufacturers for $20 billion, claiming they were responsible for Nigerian smokers' sicknesses and health care costs. Now other Nigerian states are seeking to get in on the action, much as states in the United States filed me-too lawsuits against the tobacco companies after Mississippi began suing the tobacco companies. Nigeria is Africa's most populous nation, with well over 100 million people. It is home to millions of smokers --  and to a lot of underemployed lawyers who lost income when Nigeria's economy collapsed in the 1980s...
  • eHarmony Critics Tone Deaf on 'Discrimination'

    June 11, 2007
    Eli - You make an excellent point about the sexual-orientation discrimination lawsuit against eHarmony. Even if one takes a fairly statist view of public accommodation requirements, I fail to see where the tangible harm in this case arises. The proprietors of eHarmony are in the business of setting up men with women and vice versa. Their much-vaunted "29 dimensions of personality" were created by the site's guru, Dr. Neil Clark Warren, with that specifically in mind. In other words, the site is simply not set up to match same-sex couples. Assumably eHarmony's critics wouldn't take their Mercedes in to get serviced at a Ford dealership...
  • Cigarette "Lights" Class Action Lawsuits Can't Be Pulled Out of State Court

    June 11, 2007
    The Supreme Court has just ruled in Watson v. Philip Morris that the tobacco companies can't pull lawsuits against them out of state court into federal court based on the federal officer statute, which allows federal officers and those who act under their direction to have lawsuits or prosecutions against them removed from state court to federal court. The Supreme Court's ruling involved a lawsuit against Philip Morris for selling "light" cigarettes, which supposedly understate the health risks of smoking. Philip Morris said its labeling of cigarettes is based on testing methods prescribed in minute detail by federal regulators, so it should be able to remove any such lawsuit against it from state court into federal court. The court's ruling is summarized by Ross Runkel's...
  • Public Accomodation in Cyberspace?

    June 11, 2007
    Since the passage of the 1964 Civil Rights Act, almost anyone operating a public accommodation has been banned from discriminating on a wide variety of factors considered "immutable characteristics." Good arguments exist for and against this in law, but because it lets in more customers, of course, nondiscrimination is good for business anyway. With the exception of "reasonable accommodation" for the handicapped, however, people have never read the law to require that businesses make affirmative efforts to serve any particular group. To my knowledge, nobody has ever tried to force Allen Edmonds to make women's shoes or Victoria's Secret to carry men's underwear. Yet now it appears that some gay activists want to force to provide gay dating services. While I think...
  • Congress Discriminates and Panders at the Same Time

    June 8, 2007
    There's an interesting editorial in the New York Times today about how the military is losing some of its few Arab translators due to the military's blanket ban on gays. (The policy is known as the "Don't Ask, Don't Tell" policy, but it sounds like you don't need to tell many people about your sexual orientation to be kicked out of the military). It costs many thousands of taxpayer dollars to train a translator, and there are extreme shortages of translators for Middle-Eastern languages like Arabic, Urdu, and Farsi. Yet Congress enacted an inflexible ban on gays (somewhat misleadingly referred to as the "Don't Ask, Don't Tell" policy) with no exceptions. That has resulted in 58 Arab linguists being kicked out of the military.
  • Can We Deny Amnestied Illegal Aliens Affirmative Action?

    June 8, 2007
    Should illegal aliens and their descendants be eligible to receive racial preferences over other Americans under government affirmative action programs? Black businessman Ward Connerly and other critics of racial preferences are taking out an ad on June 8 in the Washington Times calling on Congress to prevent that. They want Congress to prevent illegal aliens who benefit from the amnesty contained in the Senate immigration deal from seeking racial preferences in the future. Congress probably won't even consider that. But it is surely a good idea. It would promote fairness and save taxpayers money, by reducing the number of people who can demand special preferences based on race. Racial preferences cost a lot of money. For example, consider the rather mild affirmative action ordinance upheld by the California Supreme Court in the 1994 Domar Electric case. It nevertheless...
  • Lost Pants Now Worth Only $13 Million

    June 6, 2007
    Earlier, I wrote about an example of lawsuit abuse under "consumer protection" laws.  D.C. Administrative Law Judge Roy Pearson sued a Korean drycleaner couple for more than $65 million for losing his pants and posting signs that say “satisfaction guaranteed” and “same day service.”  He sued under the D.C. Consumer Protection Procedures Act (DCPPA), which allows a plaintiff to demand thousands of dollars in statutory damages and attorneys fees even for conduct that caused no economic loss. Now, however, he has revised his demand for money downward to $54 million from a peak of $67 million. He...
  • Should Illegal Aliens Receive Welfare and Racial Preferences?

    June 6, 2007
    The Senate is currently weighing an immigration deal supported by Ted Kennedy and George Bush that would provide amnesty for 12 million illegal aliens.   (Supporters of the bill argue that the deal is not amnesty because it requires illegal aliens to pay a modest "fine."  For a "fine" of $1,000 per head of household, plus $500 per additional household member, illegal aliens can stay in the U.S.  The modest nature of these "fines" becomes apparent when you realize that starting this summer, legal immigrants will be charged $1,010 just for getting their green card, which is just one of the many stages they pass through to become citizens).  A sensible immigration deal would liberalize restrictions on immigration, but not allow those who were once illegal aliens to receive more in government benefits, such as food stamps, federal disability payments, and social security, than...
  • Banning "Discrimination" That Might Protect Safety

    June 4, 2007
    Politicians love to vote against "discrimination." It makes them feel saintly, even if the law they vote for has unintended consequences, saddles businesses with red tape, and interferes with public safety. Soundbites matter more than sound public policy. Thus, the House of Representatives recently passed the Genetic Information Nondiscrimination Act of 2007, which will probably sail through the Senate as well. There is little evidence that anyone is being subjected to irrational discrimination based on their genes. Genetic discrimination of any kind is extremely rare. And on rare occasion, genetic discrimination may be rational, such as when genetic testing reveals that a bus driver is prone to seizures that may cause him to crash the bus he is driving. But the House has just voted to ban it in...


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