Links concerning my books are here.

My main websites are Overlawyered and Point of Law.

You can browse many of my pre-2000 writings here, and my Reason magazine writings here.

The Manhattan Institute, at which I'm a senior fellow, is here.

My page on traditional music and dance in the northern suburbs of NYC is here.

You can email me at info - [at] - walterolson - [dot] - com.

Betting on the Pequots

Indian gambling will probably arrive in the Catskills soon, waved in by state budgeters eager for revenue. Let's hope we've learned some lessons from Connecticut's decade-plus experience with Pocahontas-as-croupier, a story told in devastating fashion by Brett Fromson in Hitting the Jackpot.

The modern story of the Mashantucket Pequots and their Foxwoods casino is by now familiar. After drifting in life, a restless New Englander realizes his Indian heritage might entitle him to housing and other benefits.

Falling in with shrewd lawyers, he realizes that much more is at stake if he and his relatives can succeed in simulating the existence of a functioning tribe. They first outwit Hartford's half-asleep politicos and then maneuver a bill through Congress to secure federal recognition as a tribe without the usual scrutiny.

They proceed to erect the world's largest casino in the woods and the resulting geyser of cash, sprayed judiciously in various directions, buys them many highly placed friends, with enough left to make tribe members very rich indeed. Some of the money winds up going to classes to teach them how to become Indians, since no Pequot traditions survive as to language, crafts, belief or much of anything else.

Veteran financial reporter Fromson documents the series of sharp dealings and bald impostures that carried the day. "Never underestimate the ignorance of your opponents," proclaims the tribe's chief adviser, attorney Tom Tureen. "People are real stupid sometimes." Ideology also played a key role.

Progressive Nutmeg-state lawmakers promoted assertions of Indian identity. Federal judges leaned over to help the presumed underdogs. Liberal local congressman Rep. Sam Gejdenson avidly backed the tribe.

As for the tribe's lawyers, who'd emerged from the legal services movement, these oh-so-idealistic attorneys found themselves gradually turning into well-paid casino promoters.

And the lucky Pequots? Few stories are sadder than what happens to the typical sweepstakes winner. Unused to riches, tribal members splurged on BMWs and foreign travel, some borrowing heavily against future income to do so. The tribal government, which made Tyco look Trappist, was soon spending $200,000 per member on services, aside from the casino payroll and large direct cash payments to members. Then the flow of incoming money began to slow.

The tribe eventually shoved aside the founding Haywards from the helm of (as Fromson puts it) "the tribe they had invented." Millionaires or no, the reservation suffers from much crime and domestic abuse.

Fast-paced and well-written, this book has been assailed in some quarters as "anti-Indian," which hardly seems fair, since the folks Fromson is writing about are about as authentically Indian as Camilla Parker Bowles.

Thomas' Trials and Triumph

So much for comity between the different branches of government. Speaking on NBC's "Meet the Press" two weeks ago, new Senate Minority Leader Harry Reid coolly insulted Justice Clarence Thomas, calling the 56-year-old African-American jurist "an embarrassment to the Supreme Court" whose "opinions are poorly written."

Who knew Reid, a hitherto little-known Nevada Democrat whose major backers have been casinos and trial lawyers, took such an interest in judges' writing skills?

For years, Thomas has served as a punching bag for lazy commentators. In the 1991 fight over his nomination, liberal interest groups portrayed him as a lecherous incompetent. When he was confirmed anyway, they began banging away on his supposed overdependence on his colleague Antonin Scalia.

Among those who follow the court's work closely, most of these themes are at best passé. Over 13 years, Thomas has laid out a body of conservative-to-libertarian judicial thinking clearly distinct from Scalia's. And many court-watchers who disagree passionately with the content of Thomas' views acknowledge that there's nothing subpar about his written opinions.

Which still leaves the question of character, explored at length in Ken Foskett's new biography, "Judging Thomas."

By now the outlines of Thomas' remarkable life story are well-known: his poor upbringing in Savannah, raised by a super-strict grandfather who drilled him in hard work and obedience; his radical phase at Holy Cross, where he affected Army fatigues "and a black beret festooned with black power buttons"; his arrival at a Yale Law School then supremely confident of its mission to use the law to remake American society; his rejection of that mission and emergence as a conservative strongly opposed to counting by race as a form of governance, and at length his recruitment (via John Danforth's Missouri attorney general office) by a Bush 41 administration that kept tapping him for jobs very different from those for which he would have volunteered, culminating in a seat on the nation's highest court.

At every stage, there were lacerating snubs: from lighter-skinned blacks and snooty boarding-school students amused by his uneducated accent, from the civil-rights establishment, from People for the American Way mudslingers and New Yorker editors.

Where the criticism struck him as fair, Thomas had the strength to take it to heart: Thus, the toughie Yale Law property expert who gave him his worst grade became his favorite professor. After the confirmation ordeal, on the other hand, Thomas spent a couple of years recovering from embitterment, and even now Foskett describes him as "tightly wound," though warmly regarded by his staff.

An investigative reporter for the Atlanta Journal-Constitution, Foskett writes in a relaxed and readable style, and though a few expressions suggest that he does not necessarily agree with Thomas' jurisprudence, the resulting portrait is generally a favorable one.

Thomas' own memoirs are supposedly in the works. In the meantime, this book dramatically depicts the power of will over circumstance.

IF you went looking for some one to write a systematic or impartial account of the conflicts that are pushing America's conservative movement toward breakup, just about the last author you'd pick for the job would be Andrew Sullivan.

The British-born commentator's new book, like all his work, is engaged, quirky and personal, the view of a gifted outsider who can't go for long without circling back to gay issues. Yet "The Conservative Soul" will still resonate as one of the year's key political books, a free-associating literary polemic that well complements "The Elephant in the Room," the recent book by New York Post contributor Ryan Sager.

The "conservatism I grew up with," notes Sullivan, stood for "lower taxes, less government spending, freer trade, freer markets, individual liberty, personal responsibility and a strong anti-communist foreign policy." Defining figures such as Ronald Reagan and Margaret Thatcher spoke regularly of human freedom as the great aim of political life. "It has long been a fundamental conviction of the Republican Party," declared the 1980 GOP platform, "that government should foster in our society a climate of maximum individual liberty and freedom of choice."

Somehow from there we arrived at the presidency of George W. Bush, whose pronouncement on the state's proper role - "When someone hurts, government has got to move" - owes more to LBJ than to Barry Goldwater.

Pennsylvania Sen. Rick Santorum brusquely waves aside "this whole idea of personal autonomy," this "idea that people should be left alone, be able to do whatever they want to do." Ex-Democrats of the McGovern-Dukakis era once popularized the line "I didn't leave the party, the party left me"; if the Santorums prosper, plenty of old-line Republicans will be ready to sing the same refrain.

Sullivan's prime target is a GOP (to quote George Will) "increasingly defined by the ascendancy of the religious right." Twenty-five years ago, mainstream publications on the Right didn't regularly use the word "secular" to sum up the positions they oppose, as do the National Review and Weekly Standard today.

Back then, conservative editors might have held at arms' length an elected official who described his goal in office as being to implement the divine will. Now they vie to promote the national ambitions of Kansas Sen. Sam Brownback, who - in an astounding Rolling Stone profile cited by Sullivan - boasted of having but a single "constituent," as he pointed his finger skyward.

Much of Sullivan's point-scoring against personages on the Christian Right is forceful and well-taken, but you do wish he'd draw distinctions. He lumps truly radical figures with the merely hidebound as "theoconservatives" and, provocatively, deems "Christianism" an emergent counterpart of today's radical Islamism, if a "much milder" one.

Is it really useful to discard a century of accepted terminology so as to tag traditionalists in his own church, Roman Catholicism, as "fundamentalist"?

No, it's not.

In this respect, Sullivan's popular blog shows an advantage over the book format. When Sullivan says something unfair online, he gets and prints a barrage of reader response, and often revises his views. This book will go unrevised by ongoing customer reaction, but would have profited by it.

That aside, it helps open a crucial and timely debate.

It happened that the New York Times broke the Texaco tapes scandal the same week West Coast voters passed the California Civil Rights Initiative, and for many fans of affirmative action the combination of news stories was enough to renew their faith in the Almighty. “The Texaco crisis is God’s response to California’s Proposition 209,” declared the Rev. Joseph Lowery, president of the Southern Christian Leadership Conference. Boston Globe columnist Derrick Z. Jackson agreed: “Somebody up there is trying to keep white people honest.”

Miraculous or not, the Texaco case followed a script seen many times before. The first charges of bigoted remarks cleared the room: once managers stood accused of that offense, virtually no one took an interest in going to bat for them, least of all the company, which from first day to last kept up a flow of anguished apologies that seemed only to goad its critics into raising their demands. Even the revelation that many of the charges were false did nothing to alter the tone on either side.

The uniformity of coverage and opinion was in many ways a tribute to the Times and its reporter Kurt Eichenwald, who kept the pressure up day after day with relentlessly accusatory coverage. And it worked: in less than two weeks, paper and reporter managed to bring one of the nation’s largest businesses to its knees and terrify the employer community into renewing its flagging commitment to “diversity,” not to mention break the momentum of CCRI supporters.

That the reports contained serious inaccuracies would have been troubling enough, given the explosive status of racial matters in America today. But the real scandal of the Texaco story is how little actual investigation the Times did and how avidly it appears to have accepted a prepackaged account concocted by shrewd plaintiffs’ lawyers. Those lawyers are now apparently on their way to cashing in fees that may amount to tens of millions of dollars from Texaco’s $176 million settlement -- and it doesn’t seem to matter to the Times or anyone else that to get this money they fed the paper a story which later turned out to be full of falsehoods.

Eichenwald broke the story of the tapes on November 4, but the story of how he got the story begins well before that. For some years, lawyers have been suing the giant oil company on behalf of a number of black employees around the country, filing demands for company documents and engaging in other “pre-trial” activities. Last fall, dismissed Texaco manager Richard Lundwall apparently took it upon himself to bring to the lawyers secret tape recordings he’d made, in which his colleagues discussed many topics -- among them how to respond to the lawyers’ document demands. The recordings’ sound quality was very poor in many places, but some of the passages that were relatively clear showed managers talking about withholding or even destroying documents that would have been of interest to the plaintiffs.

That sort of conduct could constitute a serious legal offense, so the story was definite news, albeit perhaps of an inside-page variety. But the transcript of the tapes that the lawyers helpfully furnished to Eichenwald contained a second and far more explosive tale. According to these transcripts, which purported to explicate various passages on the tape that were hard to make out by ear, managers had referred to black employees as “f---ing n---ers” and “black jelly beans.”

The alleged racial epithets took a somewhat interesting news story and blew it wide open. Eichenwald quoted one of the black plaintiffs in the suit as saying the remarks “sounded like a Klan meeting.” In subsequent articles, he quoted Wade Henderson, head of the Leadership Conference on Civil Rights, as saying the tapes were “the functional equivalent of the Rodney King video” and made the case “far more significant than most complaints of employment discrimination.”

After the first day, both the news and editorial sides of the Times dropped modifying words like “alleged,” and began reporting the charges as simple fact; other papers followed suit. The paper held up for special contempt retired Texaco treasurer Robert Ulrich, who had supposedly used the “f---ing n---ers” epithet; it repeated this profoundly defamatory assertion again and again, with nary an “allegedly” in sight. Texaco promptly stripped Ulrich of his health benefits, as well as disciplining other employees. Yet there were plenty of questions that should have occurred to editors at the Times:

-- Sound quality. Journalists are supposed to know the quality of pocket audiotapes is dubious. These tapes were especially bad, having been made while hidden in the renegade manager’s clothing. And the most sensational material seemed to come from the ambiguous if not inaudible sections.

-- Context. One of the few journalists who sat down in the story’s early days and actually listened to the tapes was Wall Street Journal columnist Holman Jenkins, who not only found the alleged slurs inaudible but also noted Ulrich “remarking with satisfaction on the advancement of women and minorities” and heard discussions of how the company could best recruit blacks while laying off white employees. Jenkins later found a lawyer who’d crossed swords in an earlier case with the plaintiffs’ lead attorney, and said that in that case also his opponent had come up with a self-serving and disputable transcript of taped conversations.

-- Mysterious candy references. Eichenwald presented as racial slurs the tapes’ numerous references to jelly beans, black and of other colors; yet those familiar with corporate diversity training recognized the imagery as that used by Roosevelt Thomas, Jr., a widely known diversity expert who had instructed Texaco executives.

-- Privacy issues. The Times straightfacedly reported Lundwall’s claimed motive in making the secret tapes (to insure that his minutes were accurate) and prudently refrained from raising questions about the role of covert surveillance as a litigation tactic.(1)

Texaco finally obtained a copy of the tapes from the government and gave them to Carl Ginsburg, the audio-enhancement expert who deciphered the FBI’s recordings of the Branch Davidians. After applying enhancement techniques to the tapes, he reported back that the alleged epithets were nothing of the kind. The “f---ing n---ers” remark, which was uttered amid a discussion of winter holidays, turned out to be a reference to St. Nicholas. Ginsburg said that the attorneys’ transcript was riddled with other errors as well. One widely condemned remark -- “you know how black jelly beans agree” -- was instead “we don’t have black jelly beans and green,” he reported. Another supposedly odious remark about how the black jelly beans appeared “glued to the bottom of the bag” came from the secret taper himself, and appeared to deplore, rather than ridicule, minorities’ trouble in winning promotions.

Aside from a highly obscure passage supposedly involving St. Nicholas’s beard -- not on its face racially oriented and almost certainly a corruption of an original statement -- the only crumb remaining for the outrage-mongers was pretty mild: Ulrich’s “I’m still having trouble with Hanukkah -- now we have Kwanzaa.”

Oddly, once the company had evidence in hand dramatically calling into question the credibility of the Times’s reporting, it then proceeded to make that evidence public by releasing it to the Times itself. A source close to the company believes part of the explanation was that the company is a local institution -- it has been in Westchester County for twenty years and was in New York City before that -- and feels it’s “going to have to live with this newspaper.”

The Times did run a reasonably prominent article on the second transcript November 11 -- but put that article in only some of its editions. The next day, a tiny page-two item advised readers who missed the previous day’s article that they could write in for it. When the Times omits a story from some editions, even a light human-interest story, it often re-runs it the next day at the risk some readers will see it twice. But it didn’t bother to do so with an article implicitly retracting large parts of its most sensational civil-rights story of the year. Among readers who get early editions of the Times and never saw the corrective piece are many in the New York suburbs, including Texaco’s own Westchester County, and in places like Washington, D.C.

Standard journalistic procedure, when a secondary story begins to emerge about a newspaper’s coverage, is to assign that second piece to another reporter. But the Times left Eichenwald to report on the reaction to the revelations about his own misreporting. His new articles proceeded to push the theme that the new revelations really weren’t important. “With or without” the epithet, he quoted Wade Henderson as saying, it was the overall episode that was damning. The changes “made little difference” to civil-rights groups or plaintiffs’ lawyers, he wrote in the paper’s “Week in Review.” The plaintiffs’ lawyers variously called the new transcript “much ado about nothing” and said it changed things not “one iota.” This was of course wildly self-serving on all sides, yet it soon was in place as the official line: it didn’t matter after all whether or not white managers used phrases like “f---ing n---ers.”

The rest of the American press did no better. The Wall Street Journal, which had trumpeted “racist remarks” in big headlines, buried its correction in the sixth paragraph of a related story. Business Week found space for a piece headlined “Get Serious About Diversity Training,” but none to mention that its previous week’s report of “blatantly racist” epithets had been in error. Indeed, four days after the new transcript the Associated Press was again referring to “racial slurs” by Texaco executives. The November 18 Wall Street Journal reported that the “derogatory comments” on the tapes had “shocked” most whites while confirming black fears. Everyone had agreed to proceed as if the original charges were true.

So -- readers must wonder -- can Mr. Ulrich sue for defamation, and wind up replacing the Sulzbergers as owners of the paper of record some day down the road? Probably he’ll run into trouble if he tries this, and one major reason is that -- it’s one of the nastiest secrets of litigation journalism -- papers can print all sorts of defamatory allegations with impunity, including those that later prove false, so long as those allegations have previously appeared in official court documents. In this instance, lawyers had filed the transcripts the Friday before Eichenwald’s Monday morning piece.

The doctrine granting reporters immunity in printing the contents of court documents is an extraordinarily convenient one for lawyers, of course, because they naturally enjoy so much of a hand in shaping what will become official court documents: they draft affidavits, elicit deposition testimony, describe their opponents’ supposed conduct in the course of filing complaints, and so on; they also arrange for the transcribing of recordings. It makes them the perfect negative source: not only does a lot of material damaging to their opponents fall into their hands naturally, but they can generate more such material simply by arranging for factoids to make their way into a court record. Once they do, their friends in the press can print them.

USA Today, virtually the only paper to question this kind of manipulation in the Texaco case, asked Times business editor John Geddes whether the paper had been “used by plaintiffs in the case to promote a faulty but more inflammatory transcript.” His response? “Not unless the court was used.” You might think it had never occurred to the business editor of the New York Times that lawyers interested in promoting dubious information in the press might long ago have discovered the best carom-shot technique for getting it there: promote it in a court paper first.

“Genuine or not,” Newsweek said with fine indifference when publishing the Hitler diaries hoax, “it almost doesn’t matter in the end.” Maybe, as Derrick Jackson of the Globe would have it, the Texaco case signifies that someone up there is trying to keep white people honest. Too bad no one down here is doing the same for trial lawyers and journalists.

(1.) There was a wider story here too, about the epidemic of secret taping by litigious employees in the American workplace. A few years back a West Coast lawyer who represents fired employees suing their bosses told the Wall Street Journal that about one in five of his clients tell him they’ve secretly taped conversations. Many courts have encouraged the trend by letting workers pocket awards based on covert taping (“exclusionary” rules generally apply only to prosecutors, not private litigants). Thus a federal appeals court approved a wrongful-firing award to a Connecticut paper-company executive who’d worn a wire into meetings with his supervisors, although dissenting judge Ellsworth van Graafeiland thought it unfortunate that “every disgruntled employee in the Second Circuit henceforth will feel free to report for work with a tape recorder hidden on his person.” (Judge van Graafeiland also said he thought it unlikely that his fellow judges would be so understanding were their clerks to begin surreptitiously bringing in recorders to monitor their deliberations.)

The joke about North Carolina's 12th Congressional District is that if you drove down I-85 with your car doors open, you'd kill everyone in it.

Tarheel lawmakers used a filament of land 160 miles long to string together portions of scattered Piedmont cities. The idea was to gather enough black voters to elect a black representative, and it worked. In the eastern part of the state they produced a second black-majority district whose shape recalls a bug splattered on a windshield. The state's remaining districts variously resemble a pterodactyl, a rag doll, a broken nutcracker and the lymphatic system of a chipmunk.

On Monday, the Supreme Court rubbed its eyes and said: When you do this sort of thing, please be prepared to explain why. By a vote of 5-to-4, it said blatant racial gerrymandering -- already clearly banned when it harms minority interests -- does not become immune from Constitutional scrutiny simply because it purports to help them.

Until this week's ruling in Shaw v. Reno, all the momentum had been toward racially obsessive line-drawing. In recent New York districting battles, for example, the goal of maximizing minority strength, under threat of Voting Rights Act lawsuits, has overridden almost every other value, such as holding neighborhoods together or tracking borough lines and other natural boundaries.

When individuals get treated as mere units in racial marching teams, dehumanizing touches are inevitable. Black New Yorkers who lived too far from designated black districts were said to be "wasted". Planners fretted over the Hispanic "dispersion problem", this being the inconvenient tendency of many Hispanics to live mixed in among other New Yorkers without ghettoizing.

It seemed that before long modern computer-tracking technology would overcome the last such obstacles and allow districting lines to invade apartment houses and perhaps even homes and bedrooms, bisecting the Sealy Posturepedics of interracial couples.

South Africa's parliament has long reserved seats for Asian Indians, voters of mixed race, and so forth. But this country used to recognize segregation-in-voting as an obstacle to racial amity.

No one doubts that if the North Carolina legislature had produced its Jackson Pollock map with the declared aim of shifting power toward whites, as opposed to blacks, the Court would have struck it down. In a 1960 case, the city of Tuskegee, Alabama had altered its boundaries "from a square to an uncouth 28-sided figure" so as to exclude blacks. The Court struck down the remap. Other cases point the same way.

Of the four dissenters, Justice John Paul Stevens is the most explicit: he says there's an OK sort of racial gerrymandering, which helps minorities, and a non-OK sort, which doesn't. Justices Harry Blackmun, David Souter and Byron White offer slightly different arguments, which boil down to much the same thing.

But a court majority decided that equal protection protects both ways, thus sending some diversity buffs into conniption fits. The New York Times, in a remarkably intemperate editorial, claimed to see "a full-scale assault on the Voting Rights Act" intended to "punish" blacks and "sustain all-white politics". And it personalized the issue into an attack on Justice Sandra Day O'Connor, who wrote the majority opinion, for her supposed "willful disregard" of history, calling her arguments "disingenuous and ahistorical", "surreal", and so on.

"The civil rights community", it proclaimed, "should bring all its political leverage and legal expertise to bear against" this monstrosity -- a marked departure from the usual talk about the need to respect the law of the land once the Court has spoken on a constitutional issue.

Earth to Planet Times: you got off easy. The Shaw decision is quite narrow on its face, applying only to cases where district lines are so "bizarre" as virtually to advertise on billboards that everything other than race has been ignored. The Court earlier upheld a Brooklyn plan, challenged by Hasidic plaintiffs, where the racial factor was present but less egregious.

If it were up to some of us, the Court would go a lot further to question voting-law doctrine. It might ask, for example: why is the racial mix that's considered mandatory in school districting prohibited in voter districting, and vice versa? Why not provide that any arrangement required for the one is at least okay for the other?

The most important part of the Shaw ruling isn't the immediate practical effect, but O'Connor's calm, yet forceful, language. "Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions," she warns. "Racial classifications of any sort...reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin."

Those words may bring her flak from a few predictable quarters -- but they ought to make her the heroine of the hour for the rest of us.

Not long ago the New York Times ran a story about a lawsuit between two big companies. The subject of the dispute seemed dry: cases like it were going on all over. But the writer said this suit was like "a horror movie monster", with Wall Street "sitting up and taking notice" of the potentially "devastating" damage it could do.

What made this legal case so frightening to business readers?

It was going to trial in Texas.

"On the mind of almost everyone involved in the case is the reputation of Texas juries," explained the Times' writer. Since the Pennzoil-Texaco affair, he wrote, national businesses have "lived in fear" of Texas courts.

Are your ears burning yet?

They should. People around the world are talking about Texas' legal system, and what they say isn't flattering.

"The big verdicts in the Lone Star State are a plaintiff lawyers' dream," the National Law Journal reported last month. "...many defense lawyers feel the game is rigged against them." Of 15 mega-verdicts (over $100 million) covered by the magazine in the past four years, seven have come from Texas.

It's one of the big negatives in what ought to be a great business climate.

"It might be prudent to move operations to another state altogether," an article in London's Financial Times warned after Dow v. Alfaro, the famous decision that invites people from all over the world to bypass their boring old hometown courts and sue here.

The Texas Supreme Court thought it was being very progressive in Alfaro, but other states didn't follow its rule. Nor was there a great rush to emulate the extreme Texas rule against "protective orders", under which lawyers can obtain internal memos and secrets from their opponents and use them to recruit more clients and stir up more litigation even if the opponent is never found to have done anything wrong at all.

Last year, another Texas jury, in a case the New York Times says "sent chills through defense lawyers," found an energy company liable for the "wrongful dismissal" of a manager. They ordered it to pay $124 million in damages -- a number they might have plucked from a spinning barrel. The company reportedly settled by paying a mere $9.5 million. It's like a state lottery, only with higher overhead.

One way to improve the chances of keeping your corporate treasury from being handed over to disgruntled ex-managers is to keep your management jobs out of Texas.

Other states know that, too. Angling for relocation business, they boast of having legal systems where it's considered just as important to keep innocent parties from getting dragged through litigation as it is to give everyone a swing at the solvent defendant's pinata. Lawmakers around the country are enacting legal-reform packages, amid talk of not wanting their states to be like Texas.

Of course, we also hear some lawyers talk as if suing people is a wonderful new industry in and of itself.

Last year, after filing a suit in Orange County on behalf of more than 1,700 Alabama residents claiming injury from asbestos, the plaintiff's lawyers told the Beaumont Enterprise-Journal that the mega-suit would do wonders for the area's economy: "Lawyers, expert witnesses, doctors from all over the world will by flying in and staying in Orange motels, eating at Orange restaurants and buying gas at Orange stations."

In Austin, word seems to be getting through, just in time before the last lawyer in River Oaks leaves. SB 4, which would overturn Alfaro, passed the Senate 31-0 and may go before the House Monday.

But even if the Legislature, or the Texas Supreme Court, cleans up a few of the problems, they'll face the same problem Mario Cuomo has with the New York income tax: do away with a few of its worst features and it still won't make it up to number 49 in the rankings.

For that, something more systematic is needed. Maybe a way of picking judges that doesn't leave them so dependent for campaign money on lawyers who practice before them. Maybe a further reform of punitive damages, now awarded under a very vague standard for finding gross negligence. Maybe more frequent sanctions against wrongful lawsuits, or even the germ of a "loser-pays" principle, the way Alaska (and most foreign countries) do it.

Until something like that happens, Texas courts will go on deserving their reputation as a place where out-of-state defendants get barbecued, carved up and served with paper napkins. And while a few lucky clients and hungry lawyers munch out, the rest of the state will go on paying the bill.

One of the less edifying reactions to the Ruth Bader Ginsburg nomination came when a New York Post columnist lambasted the Brooklyn-born judge for having spent a good bit of effort trying to straighten out the tangled law of "standing" -- the law on who, if anyone, can sue when the government or someone else misbehaves. A nominee with a truly Big Heart, writer Sidney Zion seemed to think, would not have wasted her time on such a purely technical area. Which calls to mind the definition of a loophole as a feature of the tax code 1) whose function is not apparent at first glance, and 2) which benefits someone else. At law, it's usually the technical concepts like standing that make all the difference.

Take the issue of who can sue to challenge allegedly improper state fiscal practices. On May 11, 1993, New York's highest court casually broadened citizens' standing to file such suits -- and sent state financiers scrambling in panic. The result could be a long-overdue reform of state budgeting. But in this case, as in so many, one should not hope for too much public benefit from even well-intentioned lawsuits.

New York's borrowing methods have long insulted the spirit (at least) of the state's constitution, which prohibits Albany from borrowing money without voter approval. The state does that all the time, by channeling debt through its sprawling network of public authorities. The excuse is that since the state is not formally obligated to pay interest on the bonds of its authorities, they don't count as actual borrowing which voters would have to approve.

The theory is bad enough, but the practice is worse. Backdoor borrowing now accounts for no less than $17 billion of state debt, compared with $5 billion obtained through the front door. And since investors demand higher yields on unguaranteed authority bonds than on direct state bonds (to compensate for the lack of formal obligation) officials wind up paying many millions of taxpayer dollars in added interest for the privilege of evading voter scrutiny.

State officials more or less openly admit that they resort to authority bonding to get money for purposes voters would probably turn down if put on the ballot. In one famous deal, the Urban Development Corporation raised $230 million in bonds without voter approval, which it slipped into the state's hands by buying Attica prison and leasing it back to the state. "The Thruway Authority is doing canals," points out analyst Michael Brooks of Sanford C. Bernstein & Co. "These things have lives of their own."

Officials argue that such practices are lawful under existing precedent. In the 1970s, a Brooklyn Law School professor named Leon Wein filed and lost a number of suits challenging backdoor financing. The Wein cases are still good law, say the agencies. On top of that, until May, New York courts had maintained a restrictive attitude toward standing in cases of this sort -- meaning that it was hard for anyone to get into court to challenge the state in the first place.

None of which discouraged taxpayer activist Robert L. Schulz. Filing on his own behalf without a lawyer, the 53-year-old semiretired engineer has launched more than twenty challenges to the state's bonding practices. At first, like many of his pro se brethren, Schulz seemed a mere nuisance. Indeed, in 1992 a lawyer representing the state Democratic party and Governor Cuomo's campaign committee sought a permanent injunction barring the Glens Falls resident from filing any more of his putatively frivolous lawsuits.

But the do-it-yourself litigant -- who gained experience as he lost early cases -- was beginning to score some victories. Among them was a challenge to the state's practice of spending tax money to publish brochures touting the merits of bond issues pending before the voters. And last year he secured a ruling, overturned on appeal, that $531 million in deficit notes were unconstitutional.

Schulz is not planning to join the Establishment any time soon. One of his suits demanded that Tax Commissioner James Wetzler be mulcted to the tune of $1,000 "from his personal account" for having led a dubious foray into New Jersey to catch sales-tax evaders. And along with "prospective" relief restraining the state from issuing new bonds without voter approval, Schulz has also asked courts to unravel done deals, which would force the recall of already-sold bonds. By frightening investors, tactics of this sort have already backfired against the interests of taxpayers. Schulz's temporary victory last year on the deficit notes is said to have nicked the state's reputation badly in credit markets, forcing interest payments higher. "As investors demand higher yields, the state and taxpayers lose millions of dollars," former Comptroller Regan told The Bond Buyer.

Which is why even many who sympathize with Schulz's aims stop short of endorsing his banzai litigation campaign. Regan, who calls New York's borrowing practices the worst in the country, has said Schulz "should get moral support from anyone who cares about debt reform," but "one of these days, he's going to win one...and that would be a disaster for this state."

This May, with his standing victory, Schulz came a giant step closer. The Court of Appeals threw out the two claims under consideration as having been made too late, but declared that Schulz (and anyone else) would enjoy liberal standing to pursue such claims in the future. Only weeks later an Albany judge handed down a temporary order in a Schulz case, restraining the Metropolitan Transit Authority and Thruway Authority from proceeding with a multibillion-dollar financing plan. The move was more symbolic than anything else, since the two agencies weren't planning to issue bonds right away, but the symbolism was noticed.

The case for liberal standing is clear enough: without it, a good deal of misconduct in government would be unreachable by judicial review and would have to be corrected by other means, if at all. "When the courts make it impossible for people to challenge the behavior of government, you have despotism in the extreme," as Schulz puts it.

The problems with liberal standing are less obvious but just as real. It places the power to litigate issues of general interest -- which often amounts to the power to set the public agenda -- in the hands of whoever is most dissatisfied with current policy, even if that person's views are shared by few others. "We lawyers know well," wrote one of the great ones, Frederick Pollock, "and may find high authority for it if required, that life would be intolerable if every man insisted on his legal rights to the full." Skillful politicians can hammer out, say, a redistricting plan that satisfies nearly all participants; but it winds up in court anyway, and whoever stayed out of the original compromise gets the visibility and leverage of being the plaintiff with citizen standing.

There is a wider paradox: if the vast body of voters or taxpayers are imperfectly represented by the state's elected governor and legislature -- as they inevitably are -- how much more imperfectly will they be represented by Schulz, who, for all his evident zeal and sincerity, has never had to face the voters? Is there some way to preserve the corrective promise of taxpayer suits while making sure they serve actual taxpayer interests? Perhaps Justice Ginsburg can return to her home state one of these days and offer some advice.

Reason, February 1998

"Giving Women a Sporting Chance: Cal State Plan Could Be a Template for Nation" jubilated a Los Angeles Times editorial. The month was October 1993, and the California State University system had just agreed to settle a National Organization for Women lawsuit by adopting a quota system for varsity sports participation, promising that women's share would come out within 5 percentage points of female enrollment at each of its 19 campuses.

According to the Times, this "welcome commitment" would put Cal State in the "vanguard of reform," for which its administration was "to be commended." "Gender fairness in sports is really not that difficult to comprehend," explained the Times, with that touch of condescension that so grates on non-feminist ears. "Too many athletic departments just don't"--can you tell where this sentence is headed?--"get it."

The settlement's compliance deadline was set for fall 1998, and by mid-1997 one of its results had become clear: massive cuts in men's sports throughout the Cal State system. In June, Cal State-Northridge dropped its baseball team, which had ranked among the nation's top 20, along with soccer, swimming, and volleyball. Cal State-Bakersfield drastically curtailed its outstanding wrestling program. San Francisco State, Fullerton, Hayward, Chico, Long Beach, and Sonoma all got out of football.

The Cal State-men's-sports massacre made news from coast to coast, and for good reason: As the Times headline predicted, it is going to serve as a model for the rest of the country. Last April, the U.S. Supreme Court declined to review a court decision against Brown University, leaving in place an interpretation of the federal Title IX law that has already begun to devastate such men's sports as track, wrestling, swimming, and diving nationwide. A survey by the National Collegiate Athletic Association found colleges have axed 200 men's teams in recent years, with 17,000 slots lost. Gymnastics teams, which numbered 133 as recently as 1975, are down to 32 overall. Even golf, a sport whose popularity in the outside world has soared, is hard hit.

The next targets for Title IX enforcers are elementary and secondary schools. Already, many high schoolers in Florida face a ban on all athletic competition because their schools haven't done well enough at equalizing sports participation. Armed with a 1992 Supreme Court decision which allows complainants to demand cash damages as well as lawyers' fees, litigators and regulators are swarming around the field house.

The premise of the gender-equity movement is simple: Women's sports should get just as much money, attention, and participation as men's. It's a lovely ambition, acceptable in the end to most college administrators as well as most social reformers. Only two obstacles remain: the fans and the participants.

College football, to begin with, is a huge business, generating fortunes in alumni donations, gate receipts, and broadcast fees. Yet it won't have a real female equivalent as long as women are free to avoid it. (Neither forced watching nor forced playing has yet arisen on the Title IX agenda.) Even aside from male-female differences in strength and stature, extremes of physical competition and the buzz of danger just don't play the same role in women's lives as in men's, either as players or as spectators. As National Review's Kate O'Beirne has pointed out, men made up a substantial majority of the television audience for the women's NCAA basketball finals.

In questionnaires of prospective Brown students, 50 percent of the men but only 30 percent of the women expressed interest in trying out for athletics. Intramural sports were open to all at Brown, but eight times as many men took part as women. Nor is it easy to argue that the dead hand of bygone male supremacy is the problem. Women at Vassar participate in varsity sports at a rate 13 percent lower than do men, even though Vassar was a women's college until 1969.

"Including football in counting the numbers is unreasonable," Olympic high jumper Amy Acuff told one reporter. "At my school [UCLA], they cut men's swimming and gymnastics so they could start water polo and soccer for women. It broke my heart because those men's teams were really good, and a lot of the women they brought into the new sports weren't serious athletes." (The defunct UCLA diving and swimming program had garnered 16 Olympic gold medals and 41 individual national titles.)

Tough, say the hard-liners at the U.S. Department of Education's Office of Civil Rights, which "has exhibited an astonishing indifference to the destruction of athletic opportunities for males," according to University of Chicago wrestling coach Leo Kocher. Anyone at all can file a complaint that triggers an OCR investigation, and such probes, as Pittsburgh Post-Gazette sportswriter Lori Shontz observes, are not always known for their sophistication and subtlety. Staffers who swooped down on Johns Hopkins University, for instance, demanded to know why the women's basketballs were smaller than the men's, not realizing that "women's basketballs are smaller by design to accommodate smaller hands."

As usual in Washington, the quota-enforcers heatedly deny that quotas are actually mandatory, insisting that schools can comply by passing one of two other tests. They can show that women are satisfied with existing offerings--but then a complaint itself is apt to serve as evidence of dissatisfaction. Or schools can show a pattern of continued expansion of women's programs, which is to say continued progress toward proportionality. In practice, according to the American Football Coaches Association and other critics, proportionality is the "primary emphasis of enforcement," and the other two tests, though they may furnish the regulators some facade of deniability against quota charges, offer no enduring safe harbor of compliance.

In the Brown case, the federal court rebuffed the university's effort to offer evidence that men were more interested in athletics. Are women's teams undersubscribed and men's oversubscribed? Then a university must have fallen short in finding ways to make the women's programs attractive. Is it easier for women at a given level of achievement or commitment to obtain athletic scholarships than it is for men? Too bad: The university may lose anyway, unless it's brought the overall head count into line.

Nor can educators necessarily get off the hook by pointing to other demographic or behavioral variables. The student body at Cal State-Bakersfield, reports Elizabeth Arens in Policy Review, is 64 percent female and includes many women in their 40s and 50s who are upgrading their education after launching families and disinclined to pursue varsity sports.

"The women's advocacy groups strongly oppose any effort to survey interest in athletics because they do not like the results," charges Chuck Neinas, executive director of the College Football Association, who says the current state of legal interpretation "will make it difficult, if not impossible, for those universities that sponsor football to comply with Title IX."

Feminist litigators make little secret of their animus toward football, many evidently agreeing with University of Wisconsin-Milwaukee professor Margaret Carlisle Duncan that it's "an institution that promotes male dominance." Where it can't be axed entirely, they favor at least reducing the number of players on rosters, as Cal State-Fresno and other institutions have reluctantly done. College teams play with larger rosters than the pros, partly because they can't rely on mid-season signups or trades to replace sidelined regular players.

Ironically, colleges with standout football teams, being flush with revenues for scholarships and equipment, have the easiest time expanding women's sports. Although top-division football as a whole makes money, it is made unevenly, with some strong teams raking in the receipts and others running deficits. Title IX activists urge colleges to boot money-losing pigskin teams, though it seems unlikely that a conference whose cellar-dwellers dropped out could for long achieve a Lake Wobegon effect and consist entirely of teams with favorable win-lose records.

In any event, the head count, not money, is what's often really at legal issue. Wrestling is among the least expensive sports to sustain. Princeton refused to accept a $2.3 million alumni gift intended as an endowment to save its 90-year-old men's wrestling team, just as the University of Southern California did when alumni tried to save its men's swimming program. Roster cutbacks for "big" men's sports, a common feminist proposal, aid compliance efforts not so much because they save pots of money--the non-star "walk-ons" dropped are typically already playing without scholarships, travel, or equipment subsidies--but because they keep down the number of male bodies.

Of course, the Equal Employment Opportunity Commission can't resist making things worse. Last October, it put out new guidelines arm-twisting colleges to pay coaches of women's teams as much as they do men's. The guidelines do start with a token concession that not every volleyball coach may be entitled to the salary of a Big Ten football wizard, but from then on it's mostly bad news. Comparisons between dissimilar sports? No problem. Offers based on market rates or current pay levels will be suspect: "Cultural and social factors may have artificially inflated men's coaches' salaries."

The guidelines hint that if colleges can't show that they've advertised and promoted men's and women's squads equally, women's coaches should win salary-dispute cases. Of course, to hype a fanless team may be to throw good money after bad: In one well-known case, the USC men's basketball program brought in 90 times as much revenue as the women's. The agency also suggests a college may lose a case if it "sets up weekly media interviews" for a red-hot men's team but not its languishing female equivalent.

In the whole Title IX controversy, incidentally, it appears next to impossible to find anyone willing to criticize the law in principle. Sure, enforcement has gone haywire and the results are crazy, but everyone hastens to add that of course they just adore the law itself.

As for the old idea that universities in a free society should be entitled to make their own decisions--well, that notion, like so many men's track teams, is on its last lap.

You've probably heard a lot lately about the poor guy in Tampa who went to the hospital to get his leg amputated and woke to find they'd taken off the wrong leg. Thanks to the skill of the litigation lobby in spinning the media, there's also a lot about the case you probably haven't heard.

It happened last month at University Community Hospital when Dr. Rolando Sanchez mistakenly removed the left rather than right leg of 51-year-old Willie King. Making matters worse were reports of two unrelated incidents of negligence -- one fatal -- at the same hospital, Tampa's third largest.

The theme was simple. This is the kind of thing that goes on in hospitals, and only lawsuits can stop it. If the wicked Republicans succeed in limiting damages in malpractice suits, patients like Mr. King will be both more numerous and less well reimbursed.

Parts of the press bit hard. The Associated Press, in dream-come-true coverage for opponents of legal reform, led off with the King case as an example of the kind of incident likely to go undercompensated "if the House of Representatives gets its way".

ABC's World News Tonight was equally unsubtle about the moral to draw, quoting Mr. King's lawyer: "Congress should be working to make doctors more accountable for their mistakes, not less." Newsweek quoted the head of the Association of Trial Lawyers of America saying something rapturous about lawsuits. Ralph Nader went on CNN.

Some press accounts added a few more details. Remarkably, Mr. King, a diabetic retiree, had not reacted to his loss with anger, at least not at first. The hospital had promptly acknowledged the error and said it was miserably sorry.

Dr. Sanchez, for his part, did not seem to fit the profile of a problem doctor. A New York University Medical School grad with an impressive background in teaching vascular surgery, he had a 14-year record unblemished by official complaints. Colleagues and former patients were vocal in his defense. The hospital itself, despite the cluster of accidents, had had no unusual rate of past problems.

One question cried out for an answer. Operating rooms are brightly lit. How could an experienced surgeon mistake a healthy leg for one with gangrene? At his news conference, Mr. King's lawyer, Peter Brudny, pursued this theme. The difference "should have been obvious", Mr. Brudny said. "Willie never would have consented to have the right leg removed if he didn't feel he had a good left leg the rest of his life."

When the hospital finally spoke to the press, after the story had been beamed worldwide, another side of the story emerged. Most of its briefing was devoted to questions of how the error could have happened and a recurrence prevented. But the hospital's chief of staff, Dr. Brendan O'Malley, himself a diabetes specialist familiar with Mr. King's case, also added a few salient facts:

* Mr. King suffered from progressive vascular disease in both legs arising from diabetic complications that had affected several organs. He was losing both legs to these complications; the question was in what order they would go.

* Both of Mr. King's legs had undergone extensive assessment. According to many of the tests, his left leg was actually farther gone than his right, its arteries 90 percent occluded. This severely diseased leg was in no way normal-looking, and would have had to be amputated in "a very short period of time". But King had asked doctors to remove the right leg because it was giving him more pain. There followed the goof.

To be sure, Mr. King's attorney flatly denied Dr. O'Malley's assertions, and with some vehemence. "He never had any serious problem whatsoever with his left leg," Brudny said of his client. "Never, ever." But to a journalist, the direct contradiction between the two accounts should make the story more interesting, not less.

Neither AP nor ABC breathed a word about the condition of King's other leg. But they wouldn't have had to do much digging. The subject had come up in Tampa Tribune coverage a week and a half earlier, available on Nexis. Newsweek was told but omitted the fact.

Now the full story may never come to light. The hospital's and Mr. King's lawyers settled their dispute, clamping a confidentiality lid on the case.

The spinmasters of the trial bar have moved on to new daily themes, such as the supposed predilection of tort reformers for oversimplified horror stories. And the press, having availed itself of such a good tale, wouldn't want to spoil it now. As columnist Diana McLellan once put it with a wink: "Never check stories out, dear. That's how you lose them."

Furious at your high-handed boss? A generation ago you might have called a union organizer, but now you’re likelier to dial 1-800-LAWSUIT. From Mitsubishi to Texaco to the guy down the hall who put in an age-bias claim after getting downsized, lawyers and threats to sue have been fast supplanting unions and threats to strike as the prime movers of workplace conflict in this country.

The shift is reflected at the bookstore, where for every volume on collective bargaining you can find a half dozen aimed at disgruntled individual workers with titles like Your Rights in the Workplace by Marcia Stewart and Barbara Kate Repa (Nolo Press, 1996), The Employee Strikes Back! by Brian Zevnik and John Rapoport (Macmillan, 1994), and Can They Do That? A Guide to Your Rights on the Job by Michael A. Zigarelli (Lexington, 1994).

I read a sackful of these self-help volumes in the course of researching a forthcoming book on the new employment law and how it’s transforming the American workplace. Most were reasonably well-written and accurate, if also somewhat single-minded in nurturing among readers a bristly assertiveness about their rights. But they also made clear, sometimes with inadvertent humor, that the influx of lawyering into the nation’s offices and plants is making America a more contentious place in which to go about our daily work, which spells bad news for employers and quite possibly for the rest of us as well.

Attorney E. Richard Larson minces no words in his book’s title: Sue Your Boss (Farrar, Straus & Giroux, 1981). Larson tells workers who’ve been fired, passed over for promotion, or otherwise aggrieved that newly enacted laws are "very much in your favor" and just "waiting to be used". "Vast sums" can be on the table, he adds, just in case any readers have been dozing off. "Money -- lots of it -- has been changing hands."

How to get some? To begin with, says Larson, you "always should assert your rights under as many of the laws as are available." Each separate claim gives the employer something else to sweat over and pay its lawyers for, and what with this country’s lack of a loser-pays rule there’s no penalty if you’re wrong on one (or for that matter all) of them. If you fall into more than one protected-group category -- race, sex, age -- Larson advises throwing in a claim for each, whether or not you’ve seen actual evidence of bias: "there is no reason to give your employer the benefit of any doubt. Instead, assume the worst."

Most of these martial-arts-meets-the-human-resources-department volumes broadly resemble each other in format. Their drawback as a publishing proposition is that they date so quickly, falling out of print (like Larson’s), or requiring updated editions as the law relentlessly expands through such enactments as the Americans with Disabilities Act of 1990, the Civil Rights Restoration Act of 1991, the Family and Medical Leave Act, and so forth. Maybe at some point trade publishers will emulate the professional law-book houses which address this problem by publishing in looseleaf format or with kangaroo-like "pocket parts" in back for new developments.

As the manuals make clear, the law in practice is not the law as it may look on the page. Academic writers on sexual harassment split hairs about the difference between consulting a "reasonable woman" and a "reasonable person" in deciding what jokes or comments are permissible in the workplace. Ellen Bravo and Ellen Cassedy in the 9 to 5 Guide to Combating Sexual Harassment (Wiley, 1992) are blunter and more practical. "Who decides what behavior is offensive in the workplace?" they ask. "The recipient does." They advise potential offendees to "trust your instincts" about what constitutes harassment.

Thorough if not obsessive documentation is a common theme. One author suggests starting a file every time you take a new job and saving in it every scrap of paper the company ever gives you. "The one with the biggest pile of papers wins," writes Lewin G. Joel III in Every Employee’s Guide to the Law (Pantheon, 1993). What if co-workers make, say, "wisecracks about your age"? "Don’t wait until you get home from work. As soon as you are alone and have a chance to write them down, do it. Go to the rest room if you have to. Remember to bring a pencil." Take notes on supervisors’ remarks "even at a chance meeting at a ballgame or nightclub".

If relations with your boss weren’t tense already, they may get that way before long. Some authors propose that you insist on a written job description and formal performance reviews even if your company doesn’t normally follow either practice, and demand at frequent intervals to inspect the contents of your personnel file. "If you were made uncomfortable because of jokes, pin-ups or cartoons posted at work, confiscate them -- or at least make copies," write William Petrocelli and Barbara Kate Repa in Sexual Harassment on the Job (Nolo Press, 1992). Bravo and Cassedy suggest objecting to offensive goings-on in "any tone that feels right to you". (Sample wording: "If you touch me/talk to me that way one more time, I’ll report you so fast you won’t know what hit you.").

Nearly all the manuals are written by practicing employment lawyers, and after a while it becomes clear that many of them have a product to sell. "_Talk to an attorney early_", advises Darien McWhirter in Your Rights at Work (Wiley, 1989) [emphasis in original]. "...Many employees could avoid throwing their cases away if they would talk to an attorney before doing something stupid, like resigning or admitting guilt." (Admit guilt? What a dumb move!). Every Employee’s Guide to the Law, one of the livelier volumes and one of the franker in boosting litigation, tells of "a jury award out there with your name on it."

The assert-your-rights manuals are rather skimpy, however, on warning readers of the costs of a decision to get into a fight with their employers. A leading study of litigation by university professors found most who sued suffered lasting harm to "their finances; their relationships with family, friends, and colleagues; their attitudes toward lawyers and the legal process in general; and most of all their careers." Yes, there are often tempting short-term settlements to be had, shared with one’s lawyer; but they may come at a future price part of which is paid when other employers think twice about an applicant who’s shown a willingness to sue.

Then there’s the lawsuit itself, which participants often compare to an especially nasty divorce. To see this side of the process one does well to turn to real-life accounts. One of the most absorbing comes in Nan Robertson’s history of women at the New York Times, The Girls in the Balcony (Random House, 1992). The paper was targeted by an early landmark sex-bias case for paying less to female than to male employees. Robertson strongly sympathizes with the lawsuit’s aims, but recounts its events with palpable ambivalence. Waging a lawsuit against one’s employer is a "long, slow, painful, difficult, and ego-destroying process", said attorney Harriet Rabb, who represented the women employees. Grueling depositions, unmerciful invasions of both sides’ privacy, and staggering expenses helped turn the atmosphere at the paper "poisonous". The thought of going to trial "scared the socks off" both Rabb and her opposite number, Times lawyer Kathy Darrow: "We knew that people were going to get up on that stand and say terrible things about each other in public," said Darrow. "....Even taking the depositions, people cried, people were devastated, and there was nobody there but the lawyers to hear them."

If it were up to me, I’d tuck a story like that into the back of all the enthusiastic how-to-sue manuals, where it would make a much-needed "pocket part".

You may think I'm making this up unless I offer a verbatim quote, so here's exactly what the Washington Post reported in a front-page story on April 8: "In January, a former truck driver for Ryder Systems, Inc., won a $ 5.5-million jury verdict after claiming, under the ADA [Americans with Disabilities Act], that Ryder unfairly removed him from his position after he suffered an epileptic seizure, saying his health condition could be a safety hazard. During the time he was blocked from his job at Ryder, the driver was hired by another firm, had a seizure behind the wheel and crashed into a tree. Ryder is appealing the verdict."

That's one of many emerging cases where the right to sue employers under new civil-rights laws "may be on a collision course" with public safety, according to Post reporter Kirstin Downey Grimsley. For instance, the Clinton Administration's Equal Employment Opportunity Commission has filed an ADA suit against United Parcel Service over its policy of employing only drivers with sight in both eyes. The Department of Transportation forbids one-eyed drivers from operating big rigs; UPS applies the same policy to drivers of its delivery trucks. The EEOC says such a rule is unlawful and is demanding that the company fork over back pay.

Years of litigation by advocacy groups and freelance employment lawyers have put customers, co-workers, and the general public alike at risk: -- Physically incapable, mentally unstable, and alcoholic or addicted employees have again and again used new laws to hold onto safety-sensitive positions. The Massachusetts Supreme Court ruled that a Boston police recruit had the right to lie on his job application to conceal a record of repeated hospitalizations as a psychiatric in-patient. Ship's officers have won suits against oil companies for the right to command vessels despite serious boozing pasts; Northwest Airlines rehired a pilot who had flown passengers while drunk.

-- Contagious disease carries protected status too. UCLA hospital officials knew a heart surgeon was infected with the serious and highly transmissible hepatitis-B virus; he went on to spread the virus to 18 patients. "The hospital's decision to allow the surgeon to keep on operating even after he was found to be infected," it was explained, was "in compliance with federal regulations." Prominent disabled-rights advocate and former Ted Kennedy staffer Laurence Gostin has declared that, "seen through the lens of the ADA, public-health regulation may be regarded as discrimination against people with disabilities."

-- Workers' inability to read safety warnings or comprehend verbal instructions has led to accidents on the job, yet employers are under legal pressure not to turn away workers on the grounds that their proficiency in English is poor. One manual warns employers that if they want to stay on the law's safe side they shouldn't demand more English proficiency than they're prepared to prove is necessary to fill a particular position: "Sometimes only a very rudimentary vocabulary -- 'stop,' 'don't,' 'look out,' etc. -- is all that is needed to perform a job."

The reaction in progressive circles? "Advocates for the disabled," reports Kirstin Downey Grimsley, say that "even if there is an increased risk, society must accept it as the price of creating a fairer workplace for the disabled." "We can't live in a risk-free world," said Chai Feldblum, a law professor and American Civil Liberties Union activist who helped draft the ADA. Pretty ironic, since in other contexts it's thought suitable to demand punitive damages from a business that tolerated even the slightest elevation of an injury risk -- by serving coffee at any temperature above tepid, for instance.

Invariably, backers of the new laws cite language that seems to let employers take safety concerns into account. But in practice, employers act on such exceptions only at dire legal risk.

Thus the ADA allows employers to refuse a job to persons who would "pose a direct threat to the health or safety of other individuals in the workplace." In a famous case, GTE tried to fire a computer team leader who had stolen thousands of dollars from his colleagues' desks and purses and had brought a loaded gun to the Tampa office. He sued, claiming his actions had arisen from a "chemical imbalance" that GTE was obliged to accommodate. Federal judge Elizabeth Kovachevich allowed his suit to proceed.

Feminist litigators have applied similar paralysis-by-analysis tactics in order to eviscerate strength tests for prospective firefighters, police, and other public-safety officers. Strength testing is rife with "disparate impact" because inherent physiological differences between the sexes are so profound: in Chicago's 1985 fire exam, the highest-ranking woman placed 1,200th among 7,500 applicants. Upper-body strength, important for such tasks as lifting hoses and smashing down doors, shows an especially wide gap: the fittest one-fifth of women roughly match the strength of the least fit one-fifth of men.

Seldom is it declared openly that the goal is to end testing; the problem is said to be that the particular test in question is insufficiently "validated." That's how advocates can get courts to second-guess tests to death, as in Brunet v. Columbus (1986). The city of Columbus had put would-be firefighters through a series of tests simulating typical fire-scene tasks, most dramatically a rescue in which applicants were asked to carry a 125-pound sandbag along a twisting course. When the case reached court, federal judge Joseph Kinneary accepted the plaintiffs' contention that it was unfair for the city to count off points against recruits who chose to drag the sandbag instead of carrying it. After all, the lawyers pointed out, in smoky rooms firefighters sometimes find it safer to drag bodies to safety. The implication was that the city should be indifferent between recruits who could use only one of the two rescue techniques and those who could use both -- leaving Columbus residents to hope, next time they needed help, that the hazard in their particular room was smoke rather than glass or burning fluid on the floor. (At least they're better off than residents of San Francisco, which formerly asked recruits to carry a 150-pound sack up a flight of stairs, but now lets them drag a 40-pounder across a smooth floor.)

Judge Kinneary also disallowed the city's practice of awarding credit for speed in accomplishing the dummy rescue or other simulated tasks such as hoisting equipment to upper floors (men tended to finish the tasks more quickly than women). Why? Well, Kinneary wrote, again accepting the arguments of plaintiffs' lawyers, testimony had been given that "sometimes firefighters work all-out, and sometimes they pace themselves; it depends on the task at hand." In other words, they hurry only sometimes, and other times save their energy because they expect to need it later. From this the judge concluded that all applicants who made it through the tasks at all deserved equal ranking. The case for preferring recruits who could work quickly was merely, he said, "anecdotal." Yes, you read that right. It seems people have picked up this anecdotal idea that firefighters should do their job fast, maybe because they've heard anecdotally that fires left undoused tend to spread. Many press accounts adopted the same high-minded agnosticism about exactly what it takes to fight fires. City officials defending tests say "speed is critical" in combating blazes, reported the New York Times, in the best tradition of we-print-all-viewpoints journalism. "Opponents argue that it is not."

Police have fared no better. Subduing suspects by force is part of a police officer's job, but the Ninth Circuit declared it improper for Los Angeles to test police recruits for agility. In 1986 the New York Police Department agreed to drop its pre-employment physical for recruits, under threat of lawsuits. Within a few years, more than one in five city cops were considered out of shape; some hires, according to an expose in New York, fell in "the almost inconceivably unfit first percentile" -- that is to say, "worse than 99 per cent of others their age and gender."

Age-discrimination law, which now forbids automatic retirement at 65 in most lines of work, adds another risk dimension. When former Sen. Howard Metzenbaum (D., Ohio) blocked efforts in Congress to retain a retirement exemption for public-safety workers, Frederick Nesbitt, who heads the 200,000-member International Association of Fire Fighters, warned that elderly fire and rescue workers would more often be incapacitated at critical moments: extending age-bias law into this area, he said, would "result in the injury or death of innocent people."

The crusade against strength tests is immensely popular in the law schools, where it's seen as a shining example of what feminist law can do. And yet despite two decades of activism, the actual number of women firefighters remains low, an estimated 2 per cent nationally. Many wash out of training when they learn the physical demands of the job, or go on disability later. But what may be most corrosive about the courts' hostility to strength tests is that it keeps services from upholding standards among men: if they can drag the 40-pound dummy, they're in. Call it a pro-child policy, since only tots are guaranteed a capable rescuer.

Now the ADA is making things much worse. Nesbitt suggested in congressional testimony that the combination of the ADA and new bans on test "norming" is likely to make designing meaningful fitness tests "extraordinarily difficult and perhaps impossible." He added, "To date, EEOC has been unable to identify valid tests that will meet these criteria."

Not all women are happy about the assumptions made by the courts and the lawyers who presume to speak for women. "You have to ask yourself, if it was your child or your mother, who do you want to go and get her down the ladder?" asked Lauren Howard, for years the only woman on the Chicago fire department. "Do you want somebody big, incredibly strong, extremely fast, or someone who is average?"

Let's hope the life of someone we love never depends on the answer to that question.

In recent years leading medical researchers have come out with big studies finding -- contrary to what we were told in one of the great scare campaigns of modern times -- no link between silicone-gel breast implants and the rate at which women contract diseases such as scleroderma, rheumatoid arthritis, and lupus. As PBS's Frontline summed up the data, "Women with implants do not have measurably different health from women without implants." Millions of women were badly scared, it seems, for nothing. As Gilda Radner used to say, "Never mind."

In a rational world this news would have been followed first by a huge sigh of relief, then by a round of apologies, and soon thereafter by some quiet retirements from public life. First to apologize would be the trial lawyers who stoked the panic at every stage, recruited tens of thousands of anxious women (1-800-RUPTURE was one hotline), filed lawsuits on their behalf that often shared the same typos, bankrupted formerly healthy Dow Corning, and pocketed millions in contingency fees from the resulting jury awards.

Next in line to offer regrets would be various figures manipulated wittingly or not by the lawyers. Connie Chung, who touched off the big panic in a 1990 CBS news show, would send a producer to accept a Golden Oops statuette. Food and Drug chief Dr. David Kessler would quit after squirming before a congressional committee probing his decision to order the devices banned. Public Citizen, the Ralph Nader operation that sedulously spread the scare, would shamefacedly halt its sale of implant-litigation kits to trial lawyers and disband its clearinghouse for implant law firms; and its spokesman, Dr. Sidney Wolfe, would find his card tossed from many a press Rolodex.

Of course this is America in the 1990s, so none of this happened. The lawyers and Public Citizen simply denied everything; Dr. Kessler dodged; Miss Chung's producers had long since moved on to other projects. Studies or no studies, some juries -- enough to keep the game highly profitable -- go right on awarding damages; one in Nevada awarded $ 14 million.

As executive editor of the nation's leading medical journal, the New England Journal of Medicine, Dr. Marcia Angell published the pioneering Mayo Clinic study finding no link to disease. "Almost immediately," she relates, "I received phone calls from reporters who had spoken with plaintiffs' attorneys eager to discredit the Mayo Clinic, the New England Journal of Medicine, and me personally." Soon the lawyers were aiming punishing subpoenas at her and at Mayo's Dr. Sherine Gabriel.

Bad move. Provoked, Dr. Angell has now written a damning book about the whole implant scandal, on top of the damning journalistic exposes that have been running lately in places like the New York Times, Fortune, Discover, Reason, and the editorial (but not news) side of the Wall Street Journal.

Dr. Angell writes with quiet authority on the medical issues, detailing the lawyers' retreat "bunker by bunker" to claims quite different from those they made at first. She notes that while studies based on health records before the panic indicate zero effect, those drawn from later records are inevitably skewed by the panic itself toward finding the publicized (self-reported) symptoms; lawyers have seized on this effect hoping to keep the debate open. Dr. Angell also disposes of the claim, much bruited about in letters to the editor, that the researchers forgot to check for new patterns of "atypical" auto-immune or connective-tissue illness.

Though Dr. Angell strives for a sober and analytic tone, human drama keeps nosing in. A Texas woman doesn't believe herself ill but says "my family will kill me" if she doesn't file a claim. Dr. Angell blasts "blatantly unethical" members of her own profession who assist the lawyers by running diagnosis mills. One Texas doctor makes $ 2 million a year certifying illness in implant recipients, more than 90 per cent of whom come in as lawyer referrals. A diagnosis in hand "is of great value to your claim," his brochure explains; "the manufacturers (and frankly, jurors) value a woman's case much lower" without one. Other doctors proceed to "unnecessary, costly, and sometimes risky treatments" such as dosing patients with steroids; one woman was put through $ 90,000 of hospitalization and $ 10,000 a month in therapy.

Before the studies came out several manufacturers had agreed to settle for a numbing $ 4 billion, including $ 1 billion in fees for the lawyers. The terms were generous: for example, as Dr. Angell notes, "a woman could claim joint and muscle aches, disturbed sleep, fatigue, and burning pain in the chest, none of which can be objectively verified by her doctor or anyone else, and collect up to $ 700,000." Lawyers surprised even themselves by recruiting hundreds of thousands of women claiming compensable illnesses, and the $ 4-billion deal collapsed as too _low_.

New to the subject of lawsuit reform though she may be, Dr. Angell offers generally excellent proposals, emphasizing rules that would exclude unreliable expert testimony -- "junk science" -- from court proceedings. (Trial lawyers have fought such rules, with help from Harvard's Laurence Tribe and some other academics.) Though silent on loser-pays, she puts her finger on our sore lack of ways to bring lawyers' incentives into line with society's. Other businesses tempted to violate ethical rules, she notes, risk losing customers and getting into trouble with the law. "Plaintiffs' attorneys are not similarly restrained. Their clients gain right along with them, and they are not only acting within the law, but using it as an instrument." Perhaps contingency fees "should be forbidden in this country, as they are elsewhere."

In an arresting passage, Dr. Angell writes of how she views herself as a feminist and "liberal Democrat . . . quick to see the iniquities of large corporations. I disclose my political philosophy here, because it did not serve me well in examining the breast-implant controversy. The facts were simply not as I expected they would be." But "my most fundamental belief is that one should follow the evidence wherever it leads." Whether silicone causes disease "is not ultimately a matter of opinion or legal argument; it is a matter of biological fact."

Capitol Hill bully John Dingell finally ran aground when he began casually defaming the respected liberal scientist David Baltimore. Let's hope this book marks a similar turning point.

One of the most curious moments in the late campaign came when President Clinton proposed to force states to withhold driver's licenses from teenagers who do not submit to drug tests. A few years ago such a step might have been seen as unthinkably coercive and invasive, but Bob Dole's only response was that it didn't go far enough: "Too little, too late," he called it.

That fit the tone this year: Whatever else they may have disagreed on, every political candidate seemed to agree on the need to protect children by any means necessary. They all wanted to bring peace to Bosnia or keep poison out of our drinking water for the sake of the kids, not because they'd think of doing those things otherwise.

It's been a trend in national politics for some years, and of course both sides are playing. The Left has its Children's Defense Fund, the Right its Family Research Council. Choose to disagree with them about welfare or taxes and it may be because you don't care enough about little Christopher and Samantha.

Politicians have always sentimentalized children as if they were Hummel figurines. And yet when every issue becomes a child-protection issue it's easy to lose sight of other values.

To begin with, protecting kids makes the perfect excuse for taking away everyone's freedom. Why did Congress move to censor the Internet? Why did Janet Reno send in the tanks in Waco, Texas? Why did the California attorney general bust the club that helped cancer patients buy cannabis for their chemotherapy? Why do we send a 6-year-old to detention for giving his classmate a peck on the cheek or suspend a junior high student for giving her friend a Midol? Same reason, every time.

Notice that, as with the driver's license-drug test scheme, the kids themselves are often the ones whose freedoms we take away. Consider the curfews that many cities have passed requiring children to be off the street by 10 or 11 p.m. They may keep some kids out of trouble, but at the expense of others who have legitimate reasons to go out with their parents' OK.

I remember being awfully dubious about that kind of "protection" when I was a kid. I was happy to listen to my mother about how late I should stay out or whether it was okay to ride a bike without a helmet. She had good advice. After all, she was my mom.

Now we have people like Elizabeth Dole, who spent her time as transportation secretary getting states to raise the drinking age to 21. In fact, she once suggested it be raised to 24. First Lady Hillary Clinton has been talking the same way even though she made her career on the idea of children's rights.

Bill Clinton seems to think the worst danger kids face today is seeing a Joe Camel ad. Under his pending proposal, magazines that have too many teenage readers (which includes not just Mademoiselle, but Vogue and Road and Track) will have to stop running cigarette ads. And for that proposal to work many magazines are going to have to start arranging for their demographics to be reported to the government. In fact collecting subscriber data is just the start. According to Clinton official William Schultz of the Food and Drug Administration, "We would want to know who is reading it, not just who it is addressed to." Just what we need--Big Brother amassing data on who's reading what.

Conservative humorist Florence King says the current public mood reminds her of the signature line from a Joan Crawford movie: "I'd do anything for those kids. You hear me, anything!" And you know how Joan turned out in real life: Mommie Dearest.

Candidates cater to this mood because it wins votes. But I wish a few of them would start talking about leaving a world for America's children that's not just a little safer, but a little more free.