Grassroot Perspective – July 10, 2003-Play Foul Ball; Visit to a Spooky Place; Today’s Tort Suits Are Stranger Than Fiction

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“Dick Rowland Image”

”Shoots (News, Views and Quotes)”


— Play Foul Ball

By Jeff A. Talyor and the Reason staff

College presidents across the Southeast are finding out what it is like
to have millions of dollars in their pockets, while being surrounded by
elected officials who think they know just what to do with the money. If
academics ever wondered how tobacco execs and gun makers feel, well, now
they know.

Atlantic Coast Conference have been routing around political stumbling
blocks in their quest to expand their collegiate athletic league. The
biggest threat to the ACC merger — and indirectly to the taxpayers who
fund the state-supported schools in the conference — remains a veteran
of the wars against guns, tobacco, and Microsoft: Connecticut Attorney
General Richard Blumenthal.

Three Big East schools (Miami, Syracuse, Boston College) have already
been invited to join the ACC. Adding Virginia Tech to the list calms
politicians in Virginia. Gov. Mark Warner and others insisted that the
University of Virginia, an ACC charter member, not leave VPI behind. In
effect, the ACC feels it can buy UVa’s vote by adding Tech to the mix.

But the ACC still must deal with the suit filed by the Big East
conference alleging conspiracy, and therefore it has to deal with
Blumenthal. The Connecticut AG proved during the legal assault on
Microsoft that he was bulldog tough and relentlessly parochial.
Blumenthal led the phalanx of state AGs who sought a pound of flesh from
Microsoft that even the Department of Justice’s antitrust division did
not sanction. Blumenthal and the states wanted to penalize Microsoft for
its success with its Office suite while DOJ focused on Redmond’s Net
browser and operating systems.

“Today is really D-Day for American consumers and customers, but it is also Independence Day for America’s inventors, dreamers, entrepreneurs,” Blumenthal declared when 20 states and DOJ sued Microsoft back in May of 1998. That Microsoft emerged essentially unscathed by its antitrust ordeal — except for ridiculous sums spent on league defense — must’ve been a black day that consumers somehow missed.

But that doesn’t mean Blumenthal came out a loser; quite the contrary.
The goal of any state AG is to keep his or her name in the papers as a
fighter for the local folks, whether the foe is software companies, gun
makers, or rival college leagues. In that regard the Big East-ACC fight
is right up Blumenthal’s alley.

The ACC may snicker at claims that it’s conspiring to destroy the Big
East, but this is where ACC officials may not appreciate whom they’re
dealing with. Blumenthal proceeded on the guns and tobacco fronts using
the tenuous argument that those products somehow produced outsized
public expenditures that the state had to recoup. The Microsoft case
involved the even foggier premise that consumers were somehow getting
gypped, or someday would get gypped once Microsoft cornered the market
on all online commerce.

By contrast, the Big East’s dissolution would definitely cost the
University of Connecticut real money — perhaps millions. UConn was
counting on expanding its football program to fill the vacuum in and
around NYC. That kind of commitment isn’t cheap and will likely go by
the boards should the Big East fall apart or go back to being a
basketball-only league.

For that reason, Blumenthal’s suit has standing enough for a court to
take seriously. That leaves ACC members with the prospect of having to
pay legal fees for years to fight the suit, or try and settle it for
some large sum.

Or they could take the easy way out, and invite UConn to become the 14th
member of a conference that threatens to grow to grotesque proportions,
if only to avoid legal problems. Welcome to the big leagues guys.

— Visit to a Spooky Place

By Jeff A. Taylor and the Reason staff

The remote sensoring of sensitive areas has already begun — in Nevada.
Legendary Area 51, aka Groom Lake, has long been off-limits to mere
citizens. But now it appears that a buffer zone around the top-secret
airbase has been secretly expanded.

One long-time Area 51 observer found remote sensing devices on public
land outside of the base’s own 25-mile security perimeter. Soon after
Chuck Clark showed the devices to a local TV station, he received a
visit from the Joint Terrorism Task Force. Using a sealed search
warrant, the feds seized items from Clark’s home. Clark was out of town
when the raid occurred — was he under surveillance? — and has yet to
be charged with a crime.

The Pentagon might have very good reasons for monitoring who comes and
goes from public lands far from a top-secret base. But they are surely
classified. And something must be done with the data the sensors
collect. That’s probably classified, too. The Bureau of Land Management
may or may not have been told that the sensors were going in. But
bureaucratic hubris will make it hard for BLM to admit it was left
outside the loop.

Thus, secrecy and surveillance radiate out from the state with what
amounts to very little oversight and zero public input.

”’Above articles are quoted from Reason Express, Reason’s Weekly Dispatch, June 24, 2003”’

”Roots (Food for Thought)”

— Today’s Tort Suits Are Stranger Than Fiction

By Professor Michael I. Krauss, J.D.

Back in 1997, shortly after tobacco companies had agreed to settle
lawsuits with the various states’ Attorneys General, one Mark F.
Bernstein wrote a parody of the settlement in the Wall Street Journal.
Bernstein’s parody, entitled “A Big Fat Target,” excoriated “junk food”
sellers for raising our cholesterol, makers of kids’ movies for
encouraging spectator lifestyles, and “Wisconsin Cheese Lords” for
clogging our arteries. Mr. Bernstein recognized that his critique of
these producers was “a bit preposterous,” given our free will to consume
these industries’ products. But as he concluded, “It is too hot to
exercise. Dieting demands will power, and why bother if you’re just a
victim? Come on, America. Get off that couch and sue.”

To paraphrase Art Buchwald, parody of tort law is becoming more and more
difficult to write. Teenagers in New York City recently filed a lawsuit
against McDonald’s Corp., alleging that that corporation’s food “caused”
them to gain as much as 200 pounds in weight and to develop heart
disease and diabetes. One, who stands 5′ 9″, tips the scales at 270
pounds; another, more diminutive at 5′ 3″, weighs 200. These plaintiffs
frequented restaurants “nearly every day of the week,” says their
lawyer, Samuel Hirsch. Hirsch contends that “toy promotions” and “Happy
Meals” were a “lethal combination,” literally forcing these
impressionable youths to over-consume at McDonald’s.

Concern for the young doesn’t stop Mr. Hirsch from also representing one
Caesar Barber, 56, who is suing McDonald’s, Burger King Corp., KFC Corp.
and Wendy’s International for “making him overweight.” Mr. Barber, 5′
10″ and 272, has had two heart attacks, but still consumes fast food
three or four times every week. Presumably more resistant to small toys
than the teenagers, Mr. Barber was allegedly hypnotized by restaurants’
advertising. For instance, he believed that advertising that
(accurately) asserted that burgers were 100 percent beef “meant it was
good for you. I thought the food was OK. The fast food industry has
wrecked my life. I was conned. I was fooled. I was tricked.”

Tort suits against Big Fat are but the latest round in the trial bar’s
“blame the inanimate object” game. These suits follow in the footsteps
of litigation against “Big Tobacco,” gun makers, and former suppliers of
lead paint, all of which are products that can be used in harmful ways.
Professor John Bahnzaf of George Washington University’s School of Law,
one of the promoters of this game, has admitted that he would prefer to
tax to death products he does not like. Alas, pesky elected legislators
refuse to enact the taxes Bahnzaf and other gurus know we need to
protect us from temptation. So litigation, before unelected judges, is
used to obtain what can’t be got using the proper constitutional

The gun and lead paint suits have been spectacularly unsuccessful, as
have been tobacco suits (other than the settlement with the states).
Lawsuits against Big Fat will fail in the end. But they will cost
defendants tens of millions in lawyers’ and court fees and will result
in payoffs to Mr. Hirsch and to the rest of the plaintiffs’ bar. That’s
what these suits are about. They are not about tort law.

For there is absolutely no proof that the food sold by Big Fat is
“defective and unreasonably dangerous” (the legal standard for
liability). True, if an individual consumed nothing other than Big Macs,
that individual’s diet would be unbalanced and relatively unhealthy. But
none of the defendants advise or recommend that anyone consume their
food exclusively. Indeed, even the preposterous post-pubescent
plaintiffs in Mr. Hirsch’s “class action” allegedly consumed fifteen
meals per week at home. One wonders what they ate there. There is no
such thing as bad food (unless of course, the food is adulterated or
poisoned). There are merely poor eating habits.

Until recently, we assumed that a citizen’s free choices were the legal
cause of both caloric intake and sweaty out-take. But if there is no
free will, as the plaintiffs maintain, there are many more culprits than
Big Fat.

Why isn’t Mom the “cause” of Junior’s obesity? She could have
declined to give Junior the funds needed to go to the fast food joint;
she could have fed Junior salads at home; she could have signed Junior
up for the soccer team. Mom, unlike Wendy’s, actually has what the law
calls a “special relationship” with Junior — she has affirmative duties
toward her child. Or maybe the public schools “cause” Junior’s obesity:
over 79 percent of high schoolers get no physical education during any
given week.

While we’re at it, why not sue zoning boards for “causing”
Junior’s obesity? They segregate quarter-acre single-family residences,
“making” us take our cars to shops and community centers. What about
carmakers, come to think of it? They “force” us to buy their motorized
couches with their ubiquitous TV ads and zero-percent financing. What
about oil companies, that price gasoline so low that we are “forced” to
take the car instead of walking a mile to the bus stop? If we relax
principles of tort, we have lots of candidates for liability.

Those who back the lawsuits against Big Fat deplore the “epidemic” of
obesity, as if it were the equivalent of smallpox or polio epidemics
which resulted in mandatory vaccination programs. But smallpox and
polio, unlike obesity, spread involuntarily. The obesity “epidemic” is
not of this ilk. It is a complex result of shifts in living patterns and
of cultural phenomena that lead to choices to over-consume food and
under-consume exercise. Those choices, if socially inappropriate, may be
criticized. Existing legislation may inadvertently contribute to the
problem, and new laws (reforming zoning bylaws, or relaxing the public
school monopoly, or modifying the food stamp program) may have a useful
role to play in solving the problem. But reducing obesity is not within
the scope of tort law. Suing Big Fat is a big fat mistake.

”’Michael I. Krauss is professor of law at the George Mason University School of Law and a member of the Board of Scholars of the Virginia Institute for Public Policy, an education and research organization headquartered in Potomac Falls, Virginia.”’

”’Above article is quoted from Virginia Institute”’

”Evergreen (Today’s Quotes)”

“From an economist’s viewpoint, American health care policy is in a
completely predictable cost, service and access death spiral. American
policy fails to recognize that the person who generally best understands
the value of and need for medical care is the individual or the family
who is seeking it. Rationing and managed care solutions to cost control
are doomed to failure because they inherently stand in the way of
consumer sovereignty.” — Randall J. Pozdena, Cascade Policy Institute
October 2002

“A fool and his money are soon elected.” — Will Rogers

”’Edited by Richard O. Rowland, president of Grassroot Institute of Hawaii. He can be reached at (808) 487-4959 or by email at:”’ ”’For more information, see its Web site at:”’