Italy’s American Baggage

New York Times: By ANDREA CAMILLERI

In the case of Sacco and Vanzetti, it seemed immediately clear to many in Europe and the United States that their arrest in 1920 — initially for possession of weapons and subversive pamphlets, then on a charge of double murder committed during a robbery in Massachusetts — the three trials that followed, and their subsequent death sentences were intended to make an example of them. And this regardless of the utter lack of evidence against them and in spite of defense testimony by a participant in the robbery who said he’d never seen the two Italians. The perception was that Sacco, a shoemaker, and Vanzetti, a fishmonger, were the victims of a wave of repression sweeping Woodrow Wilson’s America. In Italy, committees and organizations condemning the sentence sprouted up as soon as it was announced. By the time the sentence was carried out in 1927, Fascism had been in power in Italy for nearly five years and was brutally consolidating its dictatorship, persecuting and imprisoning anyone hostile to the regime — including anarchists, naturally. And yet when Sacco and Vanzetti were executed, the biggest Italian daily, Milan’s Corriere della Sera, did not hesitate to give the story a six-column headline. Standing out glaringly among the subheads was the assertion: “They were innocent."

One can, perhaps, distinguish between a miscarriage of justice and the issue of ultimate innocence.

Va. Supreme Court denies appeal challenging school's coed swtich

Daily Press (Newport News, VA): By MICHAEL FELBERBAUM (AP)

RICHMOND, Va. - A three judge panel of Virginia Supreme Court on Tuesday denied an appeal challenging a decision by the former Randolph-Macon Woman's College to admit men.

Earlier this month, lawyers for a group of students at the Lynchburg school challenged the coed status of the college asked the state's high court to grant an appeal of the lawsuit. The group had said the school breached an implied contract with students when its governing board decided to admit men.

College officials have said the decision to admit men after 116 years was largely a financial one. The school officially changed its name to Randolph College on July 1 as it prepares to admit 67 men in the fall....

An appeal of a second lawsuit by a group of seven students and donors, which claims the school's board can't use the college's assets to benefit men, is still pending.

That suit, also dismissed in January, claims the school is a "non-stock, charitable corporation" that accepted donations during a time when its mission was to educate women.

It was a triumph a generation ago when formerly all male institutions "broke" donative provisions limiting benefits to (often white) males. This?

Colleges Can Win Student-Reporter Lawsuits by Running Out the Clock, Court Rules

Chronicle.com:

For student journalists, First Amendment lawsuits now have an immediate deadline, according to a ruling handed down last week by the U.S. Court of Appeals for the 10th Circuit.

The ruling, a unanimous decision by a three-judge panel of the court, rejected an appeal by two recent graduates of Kansas State University who in 2004 served as editors of the Kansas State Collegian, a student newspaper.

The students asserted that the university had violated their First Amendment rights by removing their faculty adviser from the newspaper staff following criticism of the Collegian’s coverage of minority issues.

The judges ruled that the plaintiffs’ status as graduates made their claims moot because, as alumni, they are not subject to censorship by the university....

A spokesman for the Student Press Law Center, an advocacy group for the rights of student journalists, said the ruling had set a troubling precedent.

“The court created a standard for mootness that makes it impossible for virtually any student to make a First Amendment claim because they will graduate before their case is concluded,” said Mark Goodman, the center’s executive director. “It’s just plain wrong.”

It is very interesting, and often discouraging, to compare and contrast instances in which courts invoke mootness to throw cases out (and make judicial resolution of recurrent issues difficult or impossible), and those in which courts find an exception to mootness, characterizing cases as "capable of repetition yet evading review." Apparently first amendment challenges by student journalists don't make the grade, unlike those of moneyed corporations and special interest groups.

USF, Physician Liable For Botched Diagnosis

Tampa Tribune: By THOMAS W. KRAUSE

TAMPA - A University of South Florida doctor gave Daniel and Amara Estrada the green light to go ahead with a second pregnancy even though their first child has significant birth defects.

The doctor, however, did not give the Estradas all the facts.

A jury determined the Estradas deserve $23.5 million for lifetime care of their second child, born with the same genetic disorder as their first. The award includes payment for the pain and suffering caused by the doctor's misdiagnosis. Because USF is a government agency, the couple must petition the Legislature for the bulk of the money.

Had Boris Kousseff properly diagnosed Aiden Estrada with Smith-Lemli-Opitz syndrome, the parents would have known there was a 25 percent chance their second child would have the disorder. A simple test could have found the disorder before Caleb Estrada was born.

Had the Estradas known, they would have terminated the second pregnancy, the couple said in their lawsuit....

Because USF is a government agency, the most it will have to pay would be $200,000 of the $21.1 million verdict. The Estradas must petition the Legislature to collect the remainder. The Estradas' lawyer said costs in the case have topped $200,000. Without the Legislature's help, the Estradas would see nothing.

"It is going to be a long road," Amara Estrada said. "I'm glad this part is over."...

State Sen. Victor Crist, R-Tampa, leads the committee that will determine whether the Estradas deserve more than the $200,000 cap.

Typically, Crist said, a group of legal experts will hear testimony and compare the jury award to similar cases. The legal experts will return to the legislative committee with a recommendation. The Legislature votes on about 100 such claims a year, Crist said.

This case might prove more difficult because of the abortion issue.

"In the 15 years I've been in the Legislature, I haven't seen that kind of issue," Crist said. "This has a potential moral question that could become a potential political issue. I don't know what the Legislature will do with that."

Chile's high court rejects extradition of ex-president

San Jose Mercury News:

SANTIAGO, Chile - Former Peruvian President Alberto Fujimori won a surprise victory Wednesday when a Chilean Supreme Court judge ruled that the ex-leader cannot be extradited to Peru to face human rights and corruption charges.

Judge Orlando A`lvarez said Peruvian prosecutors had failed to prove that Fujimori was directly involved in death squad killings, and he added that the charges were based on 'mere speculations or hearsay.' ...

Human rights activists and relatives of death squad victims denounced the ruling and accused the judge of ignoring ample evidence pinning the blame for the killings on Fujimori. ...

Chilean courts have a history of denying extradition requests.

Testing the limits of forum bashing

Testing the limits of forum bashing: two law students sue over personal attacks: By Jacqui Cheng

Two law school students filed a lawsuit against the administrator of a web site and 28 of the site's users last week for psychological and economic injury. The two plaintiffs, anonymously listed as Doe I and Doe II, are female students at Yale Law School and claim that the users of a third-party law school message board have consistently and regularly made such disparaging remarks about their characters that it has cost them not only their emotional wellbeing, but internships and jobs. And despite repeated requests to remove the offensive posts, the site's administrators continually refused to do so....

Ciolli and the AutoAdmit gang may not exactly have precedent on their side either. A student blogger from UC Berkeley recently lost a defamation case brought against him by journalist Lee Kaplan last week. The student, Yaman Salahi, had set up a blog called Lee Kaplan Watch in which Salahi cited articles written by Kaplan and publicly disputed various claims. Kaplan sued Salahi for business interference and libel, which Salahi lost in small claims court not once, but twice. On his blog, Salahi argues that because he was sued in small claims court and not a "real" court, he was unable to take advantage of California's anti-SLAPP—Strategic Lawsuits Against Public Participation—protections. "I have absolutely no doubt that had this lawsuit been filed in a real court, I would have won," Salahi wrote.

Doe I and II are asking for punitive damages in the amount of $245,000 as well as unspecified actual and special damages. The complaint also requests that the threads be permanently removed from AutoAdmit and that the administrators authorize Google to permanently remove cached versions of the threads.

Some experts believe that this case will go a long way towards testing the legal limits of anonymous Internet postings. University of Texas law professor Brian Leiter told Reuters that "the most vile posters on that board are two subpoenas away from being outed," which he says led to "much amusement" by AutoAdmit posters. "But they are about to find out that this is how it works," he added ominously.

Needless to say, this is already getting plenty of attention on the blogosphere.
Maybe the students can be represented by Robert Bork, now that he's more open to tort actions, especially those involving Yale.

Link to Verdict - Pants suit ironed out

Pearson v. Custom Cleaners Verdict - Offbeat: "Pearson v. Custom Cleaners Verdict

I have been inundated with requests for a full copy of the decision. Interested readers can find it here. Enjoy!

Follow the links to the 23-page opinion by Judge Bartnoff. The substantive legal analysis is at pp.19-22, following exhaustive findings. The opinion plays it very straight, and seems perfectly reasonable and persuasive to this non-expert reader. (There may be one confusion of the terms plaintiff and defendant in the midst of the opinion.)

Mr. Pearson appears to be a sad case, although not a very sympathetic one. The judge is yet to determine whether he will be liable for some or all of defendants' legal expenses, which certainly appear to be much higher than they would have been had Mr. Pearson taken a more reasonable approach to this situation.

A few too many bong hits, it seems. Help me, Jesus

Houston Chronicle:

Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son's legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.

Joseph Frederick, who has been teaching and studying in China, pleaded guilty in 2004 to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Nacogdoches, Texas, according to court records.

Conservatives go 4-4 today at the Supreme Court

Washington Post: Bench Conference: By Andrew Cohen

Legal and political conservatives hit for the cycle Monday morning when they 'won' four long-awaited rulings from the United States Supreme Court. The Justices further chipped away at the wall that separates church and state, took some of the steam out of the McCain-Feingold campaign finance law, neutered federal regulators in environmental cases to the benefit of developers and slammed a high school kid who had the temerity to put up a silly sign near his high school.

Each of these decisions help establish the true conservative bona fides of this Court. It is more conservative than it was last term, when Sandra Day O'Connor sat in one some of the cases. And was more conservative last term than the term before that, before Chief Justice Roberts and Justice Sam Alito joined the Gang of Nine. In fact, the Court now is is so entrenched on the ground of the legal right that, aside from the global warming case decided earlier this year, it is hard to point to a single major ruling this term that could or would give succor to legal liberals or even jurisprudential moderates. ...

Indeed, so strong is the conservative bent to the court right now that even when its right-facing Justices did not agree on the legal reasons or rationale for their rulings-- which was the case in the religion case noted above-- they are able to agree to promote government sponsorship of religion and to block taxpayer efforts to prevent it. In other words, there is room for dissent even among the Court's working majority-- a bad sign for liberal judges, lawyers and litigants in the months and years to come.

People can and do and will disagree about the "correctness" of these rulings-- but no one should have any doubt now that President George W. Bush's campaign promise-- to take the Supreme Court to the right-- has been fulfilled. That question is no longer open to argument and you need only to take a few minutes to read today's rulings to understand why.

My colleague Ann Althouse is blogging up a storm on these decisions over at http://Althouse.blogspot.com

Bong Hits 4 Jesus

This morning The Supreme Court ruled 5-4 that schools have the right to limit a student's speech when it advocates criminal activity. The case of Morse v. Frederick, which some legal experts have called the most important First Amendment test since Vietnam, came about after high school student Joseph Frederick was suspended for unfurling a 14-foot sign reading, 'Bong Hits 4 Jesus' during a class field trip in 2002.

MORE COMING SOON...

Pants suit ironed out

This is undoubtedly not today's most important judicial development, but it may be the soundest.
Washington Post:

DC Court Finds For Defendants In The $54 Million Pants Suit

Talk About Being Taken to the Cleaners (AP)

With reporters from over 9 countries packed into a tiny parking lot in North East DC, the Chungs stood 'vindicated' outside of Custom Cleaners. Jin Chung wore a yellow shirt and held before him the now infamous pair of slacks with his wife Soo by his side. As cameramen jockeyed for position lead defense council Christopher Manning opened the press conference by stating that today was a 'great day for justice.'

As cameramen jockeyed for position, lead defense attorney, Christopher Manning, opened the press conference by stating that it was a 'great day for justice.' With their daughter translating, the Chungs said they were 'happy with the result' when asked what they thought of the American justice system. They also stated that they are no longer planning to move back to Korea, and even went so far as saying Mr. Pearson was still welcome as customer.

About ten minutes in a light rain began to fall smearing the ink on the steno pads of reporters squatting on the humid asphalt. The lawyers took over answering questions stating they were certain Pearson would appeal. They also stressed that court costs, which Pearson has been ordered to pay, are much smaller than legal cost which he hasn't been ordered to pay. Manning estimated fees at about $100,000 but was doubtful if any would be collected. It was also revealed that the shop's "Satisfaction Guaranteed" sign would rest in peace. We can only hope this case and indeed Judge Pearson's antics will share a similar fate.

Student Driver in David Halberstam death to face manslaughter charge

San Jose Mercury News : By Connie Skipitares

The 26-year-old UC Berkeley graduate student who was driving the car involved in a crash that killed award-winning journalist David Halberstam last April faces misdemeanor criminal charges in the accident, the San Mateo County District Attorney's Office announced today.

San Mateo County Chief Deputy District Attorney Steve Wagstaffe said Kevin Jones will be charged with vehicular manslaughter without gross negligence. He faces up to a year in the county jail and a fine of up to $1,000 if convicted. ...

Jones had volunteered to chauffeur Halberstam, the 73-year-old New York Times reporter and nationally-acclaimed author, from Berkeley to Palo Alto to interview Pro Football Hall of Famer Y.A. Tittle for a new book. ...

The distinguished author was in the Bay Area for a speaking engagement at UC Berkeley and to interview Tittle for a new book, "The Game," about the 1958 NFL championship game between the Baltimore Colts and the New York Giants.

Jones had told the Mercury right after the accident, "It's like the ultimate failure, I had one easy thing to do - drive this man to an interview - and I couldn't even do that.

My torts students get very anxious when I discuss bartender/host liability when inebriated drivers get into accidents--many of them earn (or earned) school money mixing or serving drinks (this is Wisconsin), and tend to identify more with defendants than with victims on this issue.

In my grad school years, I volunteered to drive visiting speakers around campus, and sometimes to/from airports. Had lots of interesting conversations, and valued the experience. This made me shudder.

Autism in the Vaccine Court

New York Times (Editorial):

A federal vaccine court in Washington is confronting the contentious and highly emotional issue of whether early childhood vaccinations might have caused autism in thousands of children. Virtually every major scientific study and organization that has weighed in on the issue has seen no link. But many parents of afflicted children remain unconvinced. Their lawyers will try to prove that some 4,800 children were harmed by the mass vaccination campaigns that protect the nation’s youngsters from potentially devastating childhood illnesses. ...

In 2004, the prestigious Institute of Medicine concluded that neither the preservative, known as thimerosal, nor the measles-mumps-rubella vaccine was associated with autism and that various hypotheses about how they could trigger autism lacked supporting evidence. Even after thimerosal was phased out of pediatric vaccines, autism rates did not fall.

The vaccine court will be addressing the narrow issue of whether these families deserve compensation from a national vaccine injury fund. But the proceedings will inevitably affect all parents’ attitudes toward the measles vaccine and toward pediatric vaccinations in general.

We can only hope that, however the verdicts go, parents will remain eager to get their children vaccinated. Even the plaintiffs’ lead attorney acknowledged that mass immunization programs are “a great public benefit” that have prevented tens of thousands of deaths and serious injuries. Those who shun a vaccine are at far greater risk than those who take it.

The faculty will be exploring legal action

Antioch: "

In brief, the Board risked the College's well-being with the imposition of an ill-considered Plan, failed to provide promised support, and then closed the College....

We must ask who benefits from this? What is Antioch University without the College? The College is the only one of the University's branches with tenured faculty, a unionized staff and self governance. What of Antioch's identity do they care about preserving? If they can't raise funds now, how can they start from scratch four years from now with abandoned buildings and an entirely new faculty and student body to recruit? What will become of the abandoned employers in the Cooperative Education program, Antioch's mark of distinction? How financially healthy are the other campuses of Antioch University - has the College become a convenient scapegoat? Again we need to ask who benefits from this? In fact, the University stands to receive all the College's assets - the Glen (a 900 acre nature preserve), the library, the endowment, the buildings, the land, the legacy of Antioch.

Can the Board and University administration which conducted their review of the College's recent situation in secrecy, in violation of our governance policies, without consulting faculty and staff who stand to lose their livelihoods and professions, be trusted with the College's current assets, its legacy and its future?

The faculty will be exploring legal action to stop the College's closing and preserve tenure and the college's assets. We seek the support of alumni in this endeavor.

After all, this is America.

High court has been good for business

Los Angeles Times: By David G. Savage

WASHINGTON — The Bush administration and corporate lobbyists long have sought sweeping 'tort reform' to limit lawsuits and massive jury awards — without much success. But in the last year, they quietly have been winning much of what they've wanted on a case-by-case basis in the Supreme Court.

With a week to go in their term, the justices have handed down a dozen rulings that sharply limit the damages that can be won in lawsuits or make it harder to sue corporations.

'The Roberts court is even better for business' than the court led for two decades by the late Chief Justice William H. Rehnquist, said Washington attorney Maureen E. Mahoney, who is a longtime friend of Chief Justice John G. Roberts Jr. and a former clerk for Rehnquist. 'There is unquestionably a greater number of business cases before the court, and [the justices] are quite willing to limit damage remedies.'...

None of these pro-business decisions came as a huge surprise. But lawyers who practice regularly before the high court say it is noteworthy that business has been winning so consistently.

It is "a very business-friendly court," said Beth S. Brinkmann, a Washington lawyer who served in the Clinton administration. The justices have made it harder to sue business on many fronts, she said. ...

"This court subscribes to the Chicago school of law and economics," she said, referring to the free-market theories associated with the University of Chicago that cast a skeptical eye on nearly all regulation of business.

--

Justices Tighten Rules on Shareholder Suits

New York Times: By STEPHEN LABATON

WASHINGTON, June 21 — The Supreme Court dealt a new blow today to investors suing companies over accusations of fraud when it set a higher standard to prevent the lawsuits from being dismissed.

The decision was the second this week by the court that was a defeat for shareholders and a victory for the defendant companies. On Monday, the justices ruled that securities underwriters on Wall Street are generally immune from civil antitrust lawsuits.

Whose Blood Is It, Anyway?

Inside Higher Ed :

If a research subject donates a piece of tissue or some blood for the good of research, does that individual maintain the right to transfer ownership of his or her own biomedical sample to, say, a scientist departing for another research university, some time down the road?

That was the “pivotal inquiry” before the U.S. Court of Appeals for the Eighth Circuit in Washington University v. William J. Catalona, a case watched closely by research universities across the country. In a ruling Wednesday, the court upheld a lower court’s decision and offered the first appellate level answer to the thorny question of where a research subject’s rights to a sample stop and institutional rights begin. The standard assumption university hospitals have always worked from is that research subjects do not maintain a continuing right to direct the use of the samples they’ve signed over — or, this case asks, do they?

Research university leaders can breathe easy. In short, the decision reads, “the answer is no.” And given the timing, that simple answer is especially significant, as more and more institutions have invested heavily in biomedical research centers and blood and tissue banks in recent years....

In a statement Wednesday, Washington University commended the appellate court’s unanimous decision affirming the lower court ruling “that the donors made a gift to Washington University and, therefore, the blood and serum samples belong to the institution.”

“Today’s decision affirms the critical role of research institutions, through the establishment of ethical review boards, to protect donors from unregulated and potentially conflicting solicitations for their donated tissues. The ruling also maintains the integrity of the repository and provides the best opportunity for this extensive collection of tissues to be used to advance scientists’ understanding of prostate cancer,” the statement reads.

Washington University also pledged in its statement to continue to share tissues in the repository on a peer-review basis with outside scientists, including Catalona.

Duke Reaches Settlement With Players

From The New York Times:

DURHAM, N.C. (AP) --

Duke University has reached an undisclosed financial settlement with three former lacrosse players falsely accused of rape, the school said Monday.

Duke suspended Reade Seligmann, Collin Finnerty and Dave Evans after they were charged last year with raping a stripper at an off-campus party. The university also canceled the team's season and forced their coach to resign.

''We welcomed their exoneration and deeply regret the difficult year they and their families have had to endure,'' the school said in a statement. ''These young men and their families have been the subject of intense scrutiny that has taken a heavy toll.''...

The players' families racked up millions of dollars of legal bills in their defense, and appear likely to file a lawsuit against Nifong.

The players said in a joint statement that they hoped the agreement would ''begin to bring the Duke family back together again.''

''The events of the last year tore the Duke community apart, and forcibly separated us from the university we love,'' they said. ''We were the victims of a rogue prosecutor concerned only with winning an election, and others determined to railroad three Duke lacrosse players and to diminish the reputation of Duke University.''

One wonders whether the terms will emerge...
Meanwhile, Nifong has been disbarred, and deserves worse.

Editor’s Charge: His Lawyer Fell Short

New York Times: By Adam Liptak

People like to gripe about their lawyers after their cases go south. Listen, for instance, to Norman Pearlstine, who presided over the debacle that ended with Time Inc.’s disclosure of the identity of a source to a special prosecutor two summers ago.

“One of America’s most ferocious defenders of the First Amendment, Floyd Abrams, gave us less good advice than we deserved,” Mr. Pearlstine, the former editor in chief of Time Inc., writes in a book to be published next week. “The more I reviewed Abrams’s work,” he adds, “the more I was disappointed with his performance.”

The book, “Off the Record,” is a vivid and engaging account of Time’s legal adventures in trying to protect a reporter, two of his sources, press freedom, the rule of law and a media conglomerate during the investigation by a special prosecutor, Patrick J. Fitzgerald, into the disclosure of the identity of Valerie Wilson, an undercover C.I.A. operative."...

But veins of anger run through Mr. Pearlstine’s reflections. He is critical of some of Time Inc.’s journalists and staff lawyers, and he has special disdain for Mr. Abrams.

“In his early years as a First Amendment lawyer,” Mr. Pearlstine writes, “Abrams had a reputation for putting his clients’ interests — winning cases — ahead of making law. But now I thought he had become too much the constitutional lawyer, more focused on overturning Branzburg” v. Hayes, the 1972 Supreme Court decision that rejected First Amendment protection for confidential sources, “than on pragmatic ways in which we might fashion a compromise.”...

In an interview, Mr. Abrams expressed measured sympathy for Mr. Pearlstine, who found himself boxed in by terrible legal and financial pressures after the Supreme Court turned down the magazine’s last appeal... The book, Mr. Abrams said, “combines a bevy of misleading statements mixed with gratuitous attacks that are obviously designed to take the journalistic searchlight off of him.”...

“I knew that firing the nation’s most famous First Amendment lawyer just as we were beginning to prepare our Supreme Court petition,” Mr. Pearlstine writes, “might not go unnoticed among journalists and attorneys, many of whom worshipped Abrams.”

But it did mostly go unnoticed. Until now.

[Canada's] Supreme Court reaffirms ban on spousal testimony

Vancouver Sun:
Janice Tibbetts, CanWest News Service

OTTAWA - An ancient law that bans spouses from testifying against each other has saved a B.C. man from a double-murder conviction after the Supreme Court of Canada ruled Friday that his wife's revelation that he allegedly confessed should not have been used against him.

The federal law, rooted in the days when husbands and wives were legally regarded as one person, prohibits spouses from testifying against each other out of concern for 'marital harmony' and the 'natural repugnance' of having one spouse testify against another.

By a 5-4 margin, the Supreme Court upheld a British Columbia Court of Appeal decision that awarded David Couture a new trial because he was still married to his wife when she told police he had confessed, even though they had separated a few days earlier. ...

The evidence is excluded, not because it lacks probative value but, rather, on policy grounds based on broader social interests.