Dan Seligman writes an intriguing piece about at-will employment, the value it presents to an economy, attempts to have exceptions swallow the rule, and the irony of the New York Times invoking it in a recent employment dispute. (“The Right to Fire”, Forbes, Nov. 10 (registration required)). One of Governor Gray Davis’s departing gifts to California taxpayers was his signing of SB 578, an end to at-will employment for government contractors (on pain of criminal prosecution), which will manifest itself in increased litigation expenses and transaction costs. (Kathy Robertson, “New laws reshape workplace”, Sacramento Business Journal, Oct. 20).
New York Landlord-Tenant Court
One side effect of Manhattan rent control is that it creates a source of litigation that wouldn’t exist under a market-based system. When a tenant has a right to rent a 2800-sq. ft. SoHo loft for a few hundred dollars a month, it means that it’s worth holding a seventeen-day trial to determine whether the tenant is using the loft as her primary residence. If the tenant, who owns multiple pieces of real estate in New Hampshire, was paying market rents, then whether she was using the loft as a primary residence would be legally and economically irrelevant, and the trial would never have happened. Imagine how much is lost because New York City tenants and landlords litigate thousands of “holdover” cases every year. (Dennis Hevesi, “The Knottiest Cases of Landlord v. Tenant”, New York Times, Nov. 9; Henry Pollakowski, “Who Really Benefits from New York City?s Rent Regulation System?”, Manhattan Institute Civic Report, March 2003).
Mongo lawsuit
“Mongo the steer is now Mongo the steak, but his case lives on in a lawsuit against officials who took away the animal’s championship ribbon at the Illinois State Fair.” Mongo was disqualified, and his ribbon given to Scooby, when urine tests showed he’d been given banned medicine, perhaps to keep him from limping in front of the judges. The family complains that they weren’t able to get the rulebook off of the Internet because their dial-up connection was too slow to obtain the file, and ask for the rules to be struck — is a lawsuit against the ISP next? (“Champion disqualified; family sues”, AP, Nov. 8; “Steer scandal stirs state fair”, AP, Aug. 13).
“Three Former Players Sue MLB Over Pension”
Doug Pappas’s excellent “Business of Baseball Weblog” covers a recent lawsuit against Major League Baseball filed by former players upset that the rules were changed to make it easier to vest for pensions.
They allege that they were discriminated against when the pension rules were amended 22 years ago to reduce the vesting period for pension benefits from five years to 43 days and for medical benefits from five years to one day, but only for players then active. In their world, it’s unlawful discrimination to negotiate better benefits for current employees without making those benefits retroactive for all existing retirees. In our world, it’s not. Indeed, other groups of retired players have sued and lost over this issue.
The lawsuit also complains about a one-time $10,000 payment made to former Negro Leaguers in 1997 who also weren’t eligible for the pension. (Pappas blog, Oct. 17; “Lawsuit alleges discrimination due to race”, AP, Oct. 16; complaint). When a lawyer files a class action, he or she is representing only a few members of the class who have retained that lawyer (called “the named plaintiffs”, since they are named in the caption of the suit), and is requesting the right to represent absent members of the class, who may or may not support the suit, and may or may not elect to opt out even if the court certifies the class. But the AP coverage, as is common in journalistic coverage of class actions, (see, e.g., Oct. 21), inexplicably focuses several paragraphs on prominent absent class members who had nothing to do with the lawsuit.
“I didn’t know I was suing you!”
It’s something doctors run into more and more often: one of their patients is suing them, but doesn’t seem to be aware of it. In one common fact pattern, the patient is recruited into a mass tort suit against a pharmaceutical maker, whereupon the lawyer names the doctor as an added defendant. Feeling bad about this, the client may ask the lawyer to remove the doctor’s name from the list of those being sued — but asking isn’t necessarily the same as getting the lawyer to do it. Quotes yours truly and mentions this site (Dorothy Pennachio, Medical Economics, Nov. 7).
Homeowner not liable for garden-wall crash
Speeding through a residential neighborhood, Ross Duran “failed to stop at a dead-end, crashing his car through a cinder block wall and slamming into a flowerbed in Joseph Volpe’s back yard.” And then one of Duran’s passengers sued — who? She sued “[homeowner] Volpe and Pardee Construction Co. of Nevada claiming their negligence was at least partially to blame because of the location of the flowerbed behind the wall in Volpe’s back yard.” The case went all the way to the Nevada Supreme Court, which rejected her lawsuit, saying it would be an “undue burden” on residential property owners to make their yards crashworthy.
(“Nevada Supreme Court rejects lawsuit against homeowner”, Las Vegas Sun, Nov. 6) (via Lori Patel, “Today’s Brief”, Law.com, Nov. 7)
Recommended book
Highly recommended: David Bernstein’s new book You Can’t Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws. David, who is a professor of law at George Mason and a contributor to the Volokh Conspiracy (and has collaborated with us in the past on a number of projects), does a great job of documenting a theme dear to our hearts, namely the persistent clash between harassment law (and antidiscrimination law more generally) and freedom of speech, conscience and personal association. The book seems to be doing deservedly well on Amazon and can be purchased here (& see Dec. 7).
“Little more than a publicly traded lawsuit”
The Wall Street Journal reports that SCO Group, which has sued IBM and threatened to sue many other companies based on the premise that the open-source Linux operating system infringes its intellectual property, has negotiated an arrangement with the law firm of Boies Schiller & Flexner. Under the arrangement, Boies Schiller will be granted a 20 percent contingent fee applicable not only to judgments and settlements arising from the lawsuits but also to certain events relating to SCO itself as an entity, including sales or equity financing. Corp Law Blog, commenting (Nov. 5), says: “SCO’s willingness to essentially give Boies 20% of SCO — whether through license fees, equity financings or a sale of the company — suggests that SCO is little more than a publicly traded lawsuit.” See William Bulkeley, “Boies’s Firm Could See $49.4 Million From SCO”, Wall Street Journal, Nov. 6 (sub). (via Prof. Bainbridge)
“Americans Demand Increased Governmental Protection From Selves”
For now, it may only be a parody in The Onion. It sure is a believable one, though.
Subsidized brush-fire insurance
“Should the state and federal government encourage Californians to build houses in high-risk brush-fire zones? The brain says ‘no,’ but the policy means ‘yes.'” Matt Welch at Reason (Oct. 22; see our Oct. 31 post) further investigates the so-called FAIR insurance program, which (among its other flaws) tends to redistribute wealth to the residents of affluent Malibu and Topanga Canyon. Glenn Reynolds comments (Nov. 6).