Update: California high court narrows Proposition 64

by Walter Olson on January 28, 2011

During the successful campaign for Proposition 64 in California, reformers cited as an example of the sort of the “shakedown lawsuit” they hoped to eliminate a suit in which Bill Lerach’s class action firm demanded money from lock maker Kwikset because its product was marked “Made in U.S.A.” but included screws made in Taiwan. Nonetheless, the California Supreme Court has now ruled 5-2 that the proposition does not ban such suits after all, because consumers can claim to be injured by the arguable mislabeling, even though nothing was defective about the lock. Dissenting Justice Ming Chin, joined by Carol Corrigan, pointed out that to get around the Proposition 64 limit all that consumers “now have to allege is that they would not have bought the mislabeled product,” and that this “cannot be what the electorate intended” in voting for the measure. [L.A. Times, CJAC, earlier here, here, etc.]

Relatedly or otherwise: Glenn Reynolds interviews University of Tennessee law professor Ben Barton about his new book The Lawyer-Judge Bias in the American Legal System (“Virtually all American judges are former lawyers. This book argues that these lawyer-judges instinctively favor the legal profession in their decisions and that this bias has far-reaching and deleterious effects on American law.”)

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PointOfLaw Forum
02.13.11 at 1:12 pm
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02.22.11 at 9:07 am
New Benjamin Barton book, “The Lawyer-Judge Bias in the American Legal System”
02.25.11 at 7:56 am


1 Mannie 01.28.11 at 10:25 am

I need to stop selling anything in California. The place is too dangerous.

My six bits worth of eBay business won’t tip the cart over, but it’s too risky to do business there.

2 Jay Markowitz 01.28.11 at 4:40 pm

Damages? We don’t need no stinkin’ damages!

3 Jack Olson 01.29.11 at 10:56 am

One of the main points Barton makes in his book is that while lawyers doubt that judges’ decisions are biased in favor of lawyers, that seems obvious to everybody else. I suspect that most lawyers would reject the laymen’s opinion as ignorant: “You just don’t know how the legal system works.” Maybe they don’t know how the legal system works, but they do know for whom it works and for whom it doesn’t.

4 Bumper 01.29.11 at 11:01 am

If it waddles like a duck and it quacks like a duck, it’s probably a duck.

5 David Schwartz 01.31.11 at 5:55 am

I have thought about this case a a lot. At first, I agreed with the dissent, but now I agree with the majority. If you buy a product that turns out not to be what you thought it was, you have suffered a loss. The silly example would be if you bought what you thought was a solid gold bar for a price you felt was fair for a solid gold bar. If it turns out the bar was gold-plated silver, you have suffered an actual loss. Though in this case, the difference affects the dollar value of the bar, that is not the point. The loss comes from having something you value less than what you thought you had.

6 AMcA 01.31.11 at 1:00 pm

It’d be fun to cross examine the plaintiff about whether he’d have bought another lock because of those dastardly Tiawanese screws.

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