Obesity Lawsuits
About a month ago,
I noted that Ohio had legislation under consideration that would ban lawsuits against fast food companies. Having watched a few "tort reform" bills in Ohio get struck down by the Ohio Supreme Court, I have doubts as to whether this one would survive -- despite the "business friendly" rep most presume for the Ohio Supreme Court.
Kevin Holtsberry observed a week ago (I said I had
some things I've been meaning to blog) that the Ohio law passed in the State House on the same day the US House of Representatives voted in favor of a federal bill that does the same. He also included some of objections to the bill by opposing legislators.
Jacob Sollum at
Reason has
a good piece on the federal law, and some spectacular spinning from a leading proponent of the lawsuits.
For the last year and a half, George Washington University law professor John Banzhaf, who treats the epithet "legal terrorist" as a compliment, has been bragging that fast food restaurants and other purveyors of fattening comestibles are running scared because of the obesity litigation he champions. McDonald's et al. ought to be worried, he said, because already there have been "five successful fat lawsuits."
But now that Congress is considering a ban on lawsuits that blame food manufacturers or sellers for making people fat, Banzhaf is eager to contradict himself. In a press release issued the day before the House approved the Personal Responsibility in Food Consumption Act by a 2-to-1 margin, he said the bill "is surely premature, because there has been only one obesity lawsuit, and it was dismissed by a federal judge."
Before Congress passes legislation like this, Banzhaf said, "there should be a real history of abuse which must be corrected, not orchestrated panic based upon one failed lawsuit and some quoted-out-of-context rhetoric." Having orchestrated the panic and provided the rhetoric, he knows whereof he speaks
Sollum is a libertarian, so he has a problem with federal law dictating to state courts on tort law. Sollum, though, is honest in recognizing that such legislation might be necessary to prevent even worse regulations and abuses by States against the businesses.
Victor Schwartz, a leading expert on tort law who has been advising the National Restaurant Association, says these lawsuits still face formidable obstacles. He thinks a greater danger to the industry is that at some point state attorneys general will start filing lawsuits demanding compensation for Medicaid expenses, as they did with tobacco.
And herein lies the strongest rationale for congressional intervention, even if it means telling state courts which lawsuits they may hear -- a prospect that should make federalists uncomfortable. The agreement that settled the state tobacco lawsuits in effect imposed a nationwide tax and nationwide regulations, including advertising restrictions that would have been unconstitutional if imposed by statute, without approval from Congress or any state legislature.
A similar arrangement with food companies (or gun manufacturers, the concern of the other NRA) likewise would usurp the authority of state and federal legislators. Although condemned as contrary to the balance of powers created by the Constitution, legislation aimed at preventing such a scenario may be necessary to preserve it.
Sometimes when ideals conflict, pragmatism must be employed.
Bar Arrogance
When I was taking the Ohio bar exam, almost six years ago, a friend commented to me that the whole thing struck him as the bar association's version of hazing -- 20 hours of writing and answering questions over 2 1/2 days. To some degree it makes sense, but most of the tests and restrictions have always struck me as additional barriers to entry to the restricted field. In Ohio, they keep raising the bar standards, because they have a surplus of attorneys in the state. A reasonable way to reduce the number might be to reduce the number of state subsidized law schools -- 7 of the 9 law schools in Ohio are state schools -- but that would eliminate a cash cow for some of the schools. But I digress. The analogy to hazing and joining a fraternity has always stayed with me. I was reminded of it again, when I
read this.
The Allegheny County Bar Association is considering whether to stop publishing in the Pittsburgh Legal Journal cases in which its members are plaintiffs or defendants to spare them possible embarrassment.
Some lawyers oppose the idea, saying it would constitute unwarranted special treatment of bar association members.
The group's executive director, David A. Blaner, has formed a committee to decide whether to go ahead with the plan.
In the meantime, Blaner, who serves as supervising editor of the Pittsburgh Legal Journal, has suspended publication of an opinion in a divorce case involving two lawyers. He said members have complained to him over the years after seeing opinions issued in their cases published in the association's newspaper.
The paper itself states that the bar selects opinions for publication when they clarify law or set precedent.
Big surprise that no attorney who agrees with the plan could be found to express support for it. This is pathetic and so predictable. The attorneys don't want other attorneys in the area to know their dirty laundry, or worse what someone in the media might learn, so they want to use the local bar association to serve as their shield. (Not very different from what individual baseball players say and then
hide behind the union aegis on the issue of steroid testing.)
The idea that attorneys deserve this extra protection from discovering how they ended up as a plaintiff or defendant in a case, whatever the reason, is absurd, arrogant and just offensive. The idea that a bar association would consider the notion just to protect local lawyers from "embarrassment" makes me see red.
On The Lighter Side
Peter Bagge
illustrates his attendance at the "Alternative Lifestyles Conference." I have no comment. It's just funny.
The Madness
I've been posting a lot over at
Pitt Sports Blather. March Madness has me firmly in its grasp, though I have some things I want to get to. They keep being overwhelmed by college basketball.
I invite any readers (if there are any left) to join our bracket contest via ESPN. All the information on it can be found
here. Sign-ups go on until about noon eastern on Thursday.
