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October 26, 2006

A scary Texas legal system

[Originally appeared as an op-ed in the Houston Post under the title, "Some of the very bad reasons our legal system is well-known", Feb. 20, 1993].

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.

May 2, 2006

Have You Used a Kid Today as a Political Pawn?

[Originally appeared in the Chicago Tribune, November 14, 1996, and adapted from a commentary for National Public Radio's "All Things Considered."]

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.

February 2, 2006

Slowing the Recovery: Too Many Lawsuits

[originally appeared in the San Diego Union-Tribune, May 3, 1992]

Last fall Vice President Dan Quayle spoke out against our national mania for suing each other.

Even more amusing than the resulting spate of lawyer jokes has been the self-serving reaction of organized lawyerdom to Quayle's remarks. The American Bar Association, for example, rushed out an indignant fact sheet in response.

Remember the Veep's suggestion that America could do with a smaller number of lawyers?

The ABA doesn't deny that the United States has three times as many attorneys per capita as a country like Great Britain. But the primary reason for such differences, it declares, is not that America has too many lawyers. It's that "other countries with large populations have too few." It seems everyone's out of step but us.

Nothing enraged the lawsuit lobby more than Quayle's comment that -- when you count all the different effects -- litigation may be costing this country $300 billion a year.

Quayle's number doesn't pretend to be anything more than an educated guess on the cost of suing. What's curious are the counter-numbers his opponents keep offering. The ABA fact sheet cites a figure of $29 billion to $35 billion. So does the Association of Trial Lawyers of America. So does lawyer Joan Claybrook, speaking on PBS's "Adam Smith's Money World."

That's lower than Quayle's estimate by a factor of ten. Obviously something's wrong with one number or the other. And something is.

To get a handle on the costs of suing, it helps to start close to home, in the family driveway. More than 120 million cars are on the road. Most are insured. The portion of auto insurance that goes to liability (as opposed to theft, self-inflicted dents, and so on) varies a lot from state to state, depending on how much people sue. But the nationwide average is well over $350. Which brings the cost of liability to at least $35 billion right there, for private cars alone.

To that add a goodly sum for trucks and other commercial vehicles. Hertz recently disclosed that in whole areas of New York City it spends more to defend lawsuits than it collects in rental fees for its cars--which leaves less than no money to pay for the vehicle itself, its upkeep, employees and so forth.

Suits involving planes and trains are big business too, but let's move on to the doctors. By now four of five obstetricians have been sued; in some places those with good records pay more than $100,000 a year for insurance. If a baby is born in bad enough shape, cynical lawyers know that a suit will always have settlement value, no matter what the doctor and hospital have done.

How much does this cost per baby delivered? A study by the National Institute of Medicine reported a 1987 figure of $736 for California, less elsewhere ($527 for New Jersey, for instance, $319 for North Dakota). To be conservative, call it $400. Multiply that by roughly 4 million births a year, and you get $1.6 billion just for obstetrics, one specialty among many. For medicine as a whole, the direct cash cost of suits is thought to top $10 billion, maybe $15 billion.

We're now past $50 billion, and just getting started. Suits against City Hall are another big cash cow for the lawsuit industry. New York City juries alone recently voted $4.3 million to a thug shot by police during the brutal mugging of a 72-year-old man (upheld on appeal Feb. 20); $9.3 million to an inebriate who fell in front of an oncoming subway train; $6 million to another track totterer, and $2.5 million to a would-be suicide who jumped on purpose.

Some of these get reduced on appeal, but overall Gotham taxpayers shell out sums pushing $100 million a year even aside from suits against municipal hospitals and crashes of city-owned cars. Factor in other levels of government that get sued -- school districts, counties, states -- and the national totals have to reach well into the billions.

We haven't even mentioned workers' compensation ($50 billion, up tenfold in the past 20 years, in large part because lawyers have muscled in). Or the megabucks business of suing companies over allegedly defective products. Or environmental litigation, which dumps into lawyers' pockets vast sums that might otherwise go to cleanup: as one attorney puts it, we manage to spend 90 cents on grey flannel for every dime on blue jeans. Or "premises liability" after someone slips and falls in a store or gets mugged in a parking lot. Or liquor-serving liability.

Small wonder that Tillinghast, a big consulting firm that's been studying legal costs for years, estimates the direct cost of injury law for 1987 at $117 billion. And injury law itself is just one legal category among many. It doesn't include most disputes between businesses, a phenomenally expensive growth area. Or real estate, zoning and neighborhood wrangles. Or divorce and custody litigation, which can be the most destructive kind of all.

How did ABA-'n'-ATLA come up with their low-ball $30 billion? They cite the Rand Corp., a respected source. Trouble is, Rand never intended its number to stand for the system's full cost.

To start with, Rand excluded the vast category of cases where money changes hands on a threat to sue without the formal filing of papers. Nor did it try to count the full costs of running liability insurance. Its figures are also from 1985, two years earlier than Tillinghast's.

Ask people at Rand, and they'll tell you they know of nothing wrong with the Tillinghast numbers. James Kakalik, co-author of the Rand study, says the two studies are just trying to measure different things, that's all.

Neither Rand nor Tillinghast takes into account the non-monetary costs that are much of the nightmare for persons caught up in litigation: name-calling and privacy-invasion, acrimony and bullying. Psychiatrist Sara Charles writes that a four-year lawsuit by a former patient "swallowed up my own life completely" before she finally won at trial. "It took over my life," agrees New York University professor Jan Moor-Jankowski of a defamation suit against him that was finally dismissed after seven years. Trial lawyers, who swear that emotional distress is worth a small fortune when their own clients are suing over it, are happy to value it at zero when they inflict it on their opponents.

Even the vice president's $300 billion estimate doesn't include these intangible torments. What it does add in is the tangible but indirect cost of suits. We've all heard of "defensive medicine," where doctors feel they must order extra tests and hospital stays to protect themselves from charges of not having done all they could. A quarter of all births are now by Caesarean section, far more than good medicine would dictate, simply because we've made it so easy to sue doctors for not performing them. An American Medical Association study found that much more is spent indirectly in this way than on direct malpractice litigation, by a factor of three.

No one really knows whether the comparable multiplier for other kinds of lawsuits is higher or lower. So the Veep's figure may be too high -- or, quite possibly, too low. Which is one definition of a reasonable guess.

Will Trial-Lawyer Cash Corrupt Our Courts?

[originally appeared in Investor’s Business Daily, November 14, 1996]

Drug money isn’t the only threat to the honesty of our judiciary, as the recent convictions of three San Diego judges and a prominent trial lawyer make clear.

On Oct. 18, a San Diego jury convicted plaintiff’s attorney Patrick Frega and former California Superior Court judges James Malkus and G. Dennis Adams of racketeering, conspiracy and mail fraud. Former presiding Superior Court judge Michael Greer had already pleaded guilty to bribery based on his dealings with Frega. Appeals are likely after sentencing in January. All three judges are off the bench.

To paraphrase Oscar Wilde: Losing one local judge in a corruption scandal is a misfortune. Losing two looks rather like carelessness. Losing three suggests a pattern.

The pattern here, contrary to some early reports, is not that prosecutors have launched a puritanical crackdown on everyday socializing, the occasional lunch or Christmas sweater. Greer admitted taking $75,000 in Frega gifts. Favors to the other judges mounted far past $10,000 each. That included thousands Frega slipped to a former client so he could put Malkus’s son on his payroll.

Known for a string of million-dollar victories, Frega had been named Trial Attorney of the Year by his peers. He had an intimidating tough-guy style out of Central Casting, complete with samurai sword and nunchukas on his office wall and a fondness for fancy cars, parties, and publicity.

Part of his flamboyance, suggested his lawyer during the five-week trial, took the form of “nutty acts of generosity -- things that you or I might not do but Mr. Frega does.”

The “nutty acts” included shelling out $12,000 to help Judge Greer get a Mercedes, and $6,000 each toward cars for family members of Judges Adams and Malkus.

Frega had jolted the banking world in the pioneering 1986 lender-liability case of Williams v. Security Pacific. Judge Adams handed his client, car dealer Jim Williams, an award that mounted to $7.5 million by the time it was paid in 1990.

And who should turn up before long as a shopper at Williams’ Rancho Jeep-Eagle dealership? Why, Judge Adams. As the judge later explained: “I felt that he would give me a fair deal.”

Did he ever. The dealership’s bookkeeper said Frega kept a special charge account to cover car purchases, repairs and loaners for the three judges’ families. His automotive outlays mounted to what prosecutors said was an eventual $65,000. (Williams eventually cooperated with authorities and pleaded guilty to obstructing justice).

A key to Frega’s success was getting cases sent to his favorite jurists. (Judge Greer was in charge of San Diego case assignment; the county has since moved to a random system.) The judges then twisted arms in conferences to get opponents to settle cases favorably before trial. Frega concocted scripts” for this, and even told the judges to feign anger with him. He also hid his involvement in some cases.

At least one unwitting opponent, Bank of America, gladly accepted Frega’s proposal to dispense with jury uncertainties in favor of a bench trial. Oops: Judge Malkus, once named “Trial Judge of the Year” by the San Diego Trial Lawyers Association, bestowed a tentative $4 million award including $750,000 in punitive damages. (The bank managed to get a new trial after it sniffed out Malkus’s ties to Frega.)

A bailiff testified that Frega was given a special circuitous route along back halls to Malkus chambers so opposing lawyers wouldn’t run into him.

Even San Diego’s most famous lawyer, class-actioneer William Lerach, secretly brought in Frega to handle a case. “Greer presided over five hearings and assigned the lawsuit to Malkus,” reported the San Diego Union-Tribune, whose superb coverage helped break the scandal. “The case was settled for $2 million after settlement conferences before Adams”.

Lerach was not charged with any wrongdoing. But his four hours spent on the stand helped reveal some embarrassing facts: Frega had arranged for Judge Adams’ daughter to get a job at Lerach’s firm, Milberg Weiss Bershad Hynes & Lerach. She was working there when Adams got picked as the settlement judge for Lerach’s case.

Should we consider this a one-of-a-kind scandal? While careful to cover some tracks, the conspirators were careless in other respects. Frega let bystanders see him requesting particular judges and picking up car repair tabs, which meant prosecutors could call a parade of damning eyewitnesses. Had all been more circumspect, the scheme might continue today.

Pat always came on like he had control of the judges, like he was a Miami lawyer or something,” said a former colleague. (Miamians, please note what this comment implies about your back yard.)

Though editorialists complain about “clubby” courthouses, the problem here wasn’t undue peer pressure or politeness. “Pat has always been very un-San Diego,” one attorney told the Los Angeles Times. “This is a town where opposing counsel are friendly. Pat would not shake your hand. He preferred to go for your jugular.”

Politically active in trial-lawyer causes, Frega favored combative denunciations of the banks, businesses and doctors he sued. To get justice, “you have to use commando-type tactics,” he told one reporter. “We go to war for our clients.” Perhaps such rhetoric helped convince him he was entitled to use any means necessary.

Even after his conviction he appeared utterly unrepentant, telling reporters as he left the courtroom: I’m proud of what I’ve done for my clients.”

That remark deserves to be chiseled on a stone monument to remind every court reformer and honest judge how shamelessly abusive parts of our legal system are getting to be.

January 13, 2006

Can the nation's lawyers 'lick' the GOP's agenda?

[Originally appeared in the Chicago Tribune, March 1, 1995]

The atmosphere in the litigation debate is getting as poisonous as the atmosphere in, well, litigation itself. Eighty-two House members have now called on George Bushnell, Jr., president of the 370,000-lawyer American Bar Association, to resign after he described the Republican leadership of Congress as "those reptilian bastards."

Bushnell has refused to apologize for or retract the comment, which a spokesman for Speaker Newt Gingrich called "appallingly injudicious." The arm-waving attack is bound to remind the public of the famous 1991 American Bar Association conclave in Atlanta where then-ABA president John Curtin rudely rebuffed Vice President Dan Quayle.

In a recent speech, Gingrich warned that organized lawyers were going to turn the GOP push for litigation reform into a "brawl" and "the biggest fight" of the months ahead. "They're going to run every ad, they're going to pull out every stop, they're going to use every trick, they're going to make every threat to every member." He said lawyer groups had ponied up to $20 million and were threatening both primary and general election challenges to any member who votes for curtailing lawsuits. "That's how bad it's going to be. It's going to be unbelievable, bitter, in the trenches, just fighting it out."

The ABA's February convention in Miami geared up for an all-out war against GOP legal-reform plans, with any spare time devoted to fighting welfare reform and other Republican plots. Delegates shouted through resolutions opposing "Contract with America" planks with little or no reported dissent or discussion. The seeming unanimity prevailed even though many of the lawyers present were defense litigators who represent clients who get sued, clients who presumably would welcome some of the Republican efforts to cut down on suing.

Lawyer-commentator Mark Pulliam, writing in the California Political Review, recently described a campaign mailing sent out last fall to San Diego lawyers. The pitch went not just to lawyers who represent plaintiffs but also to defense litigators, and specifically warned that "defense business will dry up" if Republicans get in and pass reform.

A wry moment came last week when the ABA's litigation-section chair, Davis Weiner, complained that the new House leadership did not include enough lawyers, pointing out that only one of the eight higher-ranking Republicans is a member of the bar. In the newly elected House, members with backgrounds in business, banking or real estate outnumber lawyers for the first time in decades, 191 to 170. (Lawyers still outnumber enterprise types by 2 to 1 in the Senate, 54 to 27, and made up 13 of the 18 members of the original Clinton cabinet.)

Worse yet from the organized bar's point of view, the one attorney in the House leadership, Chris Cox of California, is even more vocal than the rest on the need to rein in courtroom abuse. "For the first time the profession is going to be regulated from the perspective of nonlawyers, and I told them that," Cox told the Washington Times.

ABA president Bushnell's "reptilian" outburst came in reaction to the prospect that Republicans will scotch a Clinton administration plan to expand funding for the Legal Services Corp., the former Hillary Rodham Clinton bailwick whose poverty lawyers are expected to sue to block any welfare reform Congress succeeds in enacting.

Bushnell, a Detroit Democrat, is not earning a reputation as the avatar of a new Augustan Age of wit and sensibility. Among other comments, he declared last week that recent conservative electoral wins were based on "the pimping of fear." He called the menace of GOP legislation "comparable to that of the invasion of our shores by foreign forces." Even his apparent play on the speaker's name was a dud, since Newts in fact are amphibians, not reptiles.

The cruelest blow came when the head of the Association of Trial Lawyers of America, a group whose bare-knuckled style is legendary in Washington, asked Bushnell to apologize for his "outrageous insult" and "name-calling," publicly worrying that the bouncing-off-the walls remarks will hurt the lobbying blitz against lawsuit reform. Almost unthinkably, ATLA now bids to become the more polite and respectable of the Terrible Twins of Bar Self-Interest.

As recently as the 1970s, the ABA was a comparatively sedate and respected professional group that steered clear of most political controversies. Now, as it settles into the role of a trade guild for people who sue people, you might think it's squandering what was once its considerable dignity.

But maybe it's better to suppress such passing thoughts, lest you wind up as one of those Republican-majority types. Before long you might be sunning yourself on a rock, flicking your tongue, and wondering why Dad skipped out, the way they do on the Hill.

Dworkin's morality: rule by Supremes

[Review of "Freedom's Law: The Moral Reading of the American Constitution" by Ronald Dworkin (Harvard University Press). Originally appeared in the Baltimore Sun, May 5, 1996]

Few figures sum up the era now passing away in American law as thoroughly as Ronald Dworkin, author of extravagantly praised books on jurisprudence, professor at Oxford and NYU, and furrow-browed scourge of conservative Supreme Court nominees. This latest collection of his essays may please a few diehards, but in the long run is likely to deflate further the transatlantic blimp of his reputation.

The volume consists largely of New York Review of Books essays, most of which deal with either Roe v. Wade (he's for it) or the Bork and Thomas nominations (against) with excursions into topics like affirmative action and euthanasia (for, in both cases). Newly added is a turgid introductory essay -- the New York Review's editorial skills are missed -- laying out his case that judges should give the Constitution a moral reading, which amounts to what most of us would see as reading their own moral views into that document.

Trained in academic philosophy, Dworkin now bids to be the last defender of the Warren Court philosopher-king ideal under which a wise Supreme Court gets to meditate on moral issues and proclaim the results as constitutionally binding whatever the strain on the document's language, structure or history. Nearly everyone else has grown disillusioned with that ideal; the significant recent trend has been the rise of anti-activist thinking among many who share liberal goals.

Various writers associated with the New Republic thus favor keeping abortion legal or doing away with the death penalty but don't think courts should dig up the Constitution in search of such rights like a lawn mower chasing moles.

Dworkin concedes a "near unanimous" view among today's scholars that too much judicial review endangers the citizenry's right to govern itself -- what he dismisses as the "majoritarian premise" .

There's a consistency worry too. Once judges go activist, what's to stop them from, say, writing free-market economics into law, as they did years ago? (Especially since the Constitution really does contain provisions against impairing the obligation of contracts or taking property without compensation.) Dworkin's answer: the copycat judges would simply be "wrong", since the second group of rights aren't "fundamental to freedom". Thus does James Carville's book title -- "We're Right, They're Wrong" -- get translated into high theory.

The best picks here are the book reviews, where Dworkin grapples with authors' fact-finding and forgets his usual sniffish abstraction. His piece on Renata Adler's "Reckless Disregard" and the two big libel suits it covers is worth a look; he warms to a biography of the famous judge Learned Hand, for whom he clerked, and scores a few hits on Catharine MacKinnon, the Savonarola of Ann Arbor.

But he never strays far from his constitutional hobbyhorse. High court nomination battles preoccupy him much as royal successions dominated stage drama in the age of kings. His writings on them run to intense partisanship, as when he claims President Reagan's court policy was meant to "leave the Constitution no longer an important source of...individual rights against unjustified public authority" -- or, put more plainly, that it was meant to suspend the Bill of Rights.

That kind of thing is as demagogic as any GOP pamphleteer's suggestion that every Clinton judge wants to turn criminals loose, and the pamphleteer doesn't get an Oxford don's chair out of it.

January 3, 2006

Meddlers won't quit

[Originally appeared in USA Today, November 17, 1997, as "Opposing View" to USA Today's editorial].

Fresh from its push to protect mental illness in the workplace, the Equal Employment Opportunity Commission (EEOC) is back with its next social-engineering venture: arm-twisting pay parity between men's and women's coaches. The likely results? More outside meddling in college sports and worsening of the current Title IX disaster for such sports as men's track, wrestling and diving.

News flash: Women are different from men. College football is a huge business, and it won't have a female equivalent as long as women are free to avoid it. Extremes of physical competition don't play the same role in women's lives as in men's.

Yet Brown University got rebuffed when it defended its small excess of male varsity positions by noting that men were more likely to try out for teams. After higher-ups settled a lawsuit by accepting varsity quotas, Cal State Northridge this June proposed dropping men's baseball, soccer, swimming and volleyball. Title IX-driven cuts have devastated "nonrevenue" men's sports, with gymnastics teams, which numbered 133 in 1975, down to 32 today.

After a token concession that not every volleyball coach may be entitled to the pay of a Big Ten football wizard, the new EEOC guidelines start in with the 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."

Worse, the EEOC hints that women's coaches should win even if their programs are revenue washouts -- in one famous case, the USC men's basketball program brought in 90 times as much revenue as the women's -- if colleges didn't advertise and promote their squads as heavily as the men's, though to hype a fanless team may be to throw good money after bad. In a typical stroke of micromanagement, the agency suggests a college may lose if it "sets up weekly media interviews" for a red-hot men's team but not its languishing female equivalent.

Washington flexes its muscles. What keeps on atrophying is freedom.

Age-bias law backfires on boomers

[Originally appeared in USA Today, August 26, 1997]

Britain’s new Labor government has vowed to introduce a law that would forbid U.K. employers from discriminating against older workers, along the lines of this country’s Age Discrimination in Employment Act. Such a bill would ban the custom of automatic retirement from a company at 65 or any other age, as we’ve banned it here. “The employers in the U.S. can cope with the so-called cost burden, so why can’t we?” said Lawrence Davies, a British lawyer pressing for the change. “It seems to me that the U.S. is thirty years ahead of us.”

Memo to Prime Minister Tony Blair: don’t rush into this.

From across the Atlantic, age-bias law may look simple and straightforward. American politicians endorse it almost unanimously with a nod to the powerful American Association of Retired Persons. Big employers emit few protests. There’s a vague sense that anyone remaining skeptical must be in some way hostile to the elderly -- much as anyone dubious about covering the disabled, gays or people with accents with bias laws is thought to be somehow against those groups.

But there’s a problem: signs are mounting that this law makes things worse for many of the workers it’s meant to help.

And there are more of them than you think. Most baby boomers, those over 40, are “protected” by these laws.

Originally passed by Congress in 1967 and toughened since then, the age-discrimination law was supposed to help older workers stay at their jobs longer, bring their talents renewed respect at the workplace, and put in their own hands the timing of their retirement decision. The opposite has happened on every front.

There’s widespread evidence that older workers are losing relative ground in hiring. The federal Bureau of Labor Statistics observes that they face “greater labor market difficulties” than younger colleagues when displaced from an old job.

Rates of full-time employment for older men have dropped, not risen, since the law came in.

Big employers increasingly prune their payrolls via “buyout” offers targeted at older employees. So far has this process gone that in some lines of work, being bought out now begins to seem like the normal way to end a career. But buyouts tend to flush longtime workers out of their jobs earlier, not later, than they would have departed under the old system.

Morale has plunged for veteran workers, who feel less welcome. For example, firms have quietly but steadily done away with the awards and ceremonies by which they used to honor milestones such as 20 or 25 years of service.

Are all these developments mere coincidence? Almost everything but the law gets blamed. “Older employees are perceived as less flexible and adaptable,” says an AARP analyst, while a Washington Post report cites such possible hurdles as “unfamiliarity with changing technologies; a lack of networking and interviewing skills; not knowing the latest way to effectively write or circulate a resume,” and so forth. But most of these problems have been there all along. Why should they have gotten worse?

Consider another possibility: Older applicants now pose a heightened legal danger to employers. If they don’t work out, or if advancing age soon takes a toll on their ability, they may require an expensive buyout. Simply firing them is a recipe for getting a lawsuit: and employers see age cases as “the most dangerous type of discrimination case to take to trial,” reports the Employee Relations Law Journal. Lawsuits over age bring much higher payoffs than those over race or sex, thanks in part to the virtually automatic doubling of damages. (Result: the juiciest monetary rewards of bias law -- in verdicts, settlements and buyouts -- go to middle-aged white males, especially those in executive and managerial posts. Did someone say ironic?)

Of course, no individual employer would admit to tilting against older job applicants; that would be legally suicidal, since hiring bias remains flatly unlawful. And since backers of age-bias law aren’t eager to have people think their pet cause has backfired, there’s a sort of community of interest in downplaying the problem.

One obvious comeback is that if employers are reluctant to hire older workers because of the perceived legal hazards, the answer is to crack down on them by taking them to court. Easier said than done: as long as managers have not let slip interview questions, stray remarks or jotted notes that a clever lawyer can in some way link to matters of age, it’s quite hard for any single applicant to make a case.

The other possibility would be to ask courts to scrutinize overall hiring numbers, which is exactly what we let them do in the case of the hiring of minorities and women, and which does indeed provide a definite incentive -- for better or worse -- for employers to hire members of those groups to stay out of trouble. But no one has the stomach to push quota pressure for older job applicants. It’s just too obvious that in no world this side of the absurd would, say, over-55s get hired proportionally as lifeguards, bicycle messengers and MTV announcers. So today’s older job applicant gets the worst of both worlds: legally hazardous to hire but not especially hazardous to turn away in the first place.

So what do older workers get from our new system? Well, you might say, they get lucrative buyouts. Yet no rational worker would ever have designed today’s buyout plan on purpose as a fringe benefit. Because companies typically spring offers as a surprise, they keep workers not knowing when they’ll retire, thus unable to plan their futures. Buyouts also dish out cash windfalls unevenly and unfairly among equally deserving employees. (Workers who are highly paid in the first place are most likely to bag generous sums, while most blue-collar laborers can expect no buyouts at all.)

Even well-off professionals, the ones most likely to pocket early retirement offers, can hardly expect a free lunch. At some point employers must begin factoring the cost of eventual buyouts into their calculations how much to pay such workers in the first place.

“Despite all the age-discrimination laws,” observed the normally shrewd Forbes in June, “employers are often motivated to get rid of older workers.” Despite? Try “because of”. Before Britain heads down the same path, it might want to take a hard look at the unintended consequences of our experiment.

November 7, 2005

Let's Get Lawsuit Mania Off the Docket

[Published in Newsday, April 12, 1991]

After a minor fender-bender, unhurt riders hobble around on crutches for months in hopes of a big settlement . . .

A leading Hollywood studio sues its rivals so often that its chairman boasts of having turned litigation into a profit center . . .

A sane, intelligent couple set out to get a "reasonable" divorce and end, a dozen rounds of litigation later, having annihilated each other's finances . . .

Why do Americans spend so much time, money and sadistic ingenuity beating each other up in court?

The sad answer: because our legal system is actually set up to encourage lawsuits. More than any other country, we make it easy and tempting for people to sue their fellow citizens. The rules are mostly new, many dating back only to the 1970s. And it's time we took a second look at them.

A thousand billboards, matchbook and late-night TV ads symbolize the problem. Accident? Injured? Bored with your spouse? Tired of working overtime to pay off those credit cards? Let us knock some sense into that doctor/boss/hubby/bank of yours!

Other countries discourage the stirring up of lawsuits (as did we, until 1977 when the Supreme Court suddenly legalized lawyers' advertising). Most countries also frown on the contingency fee, where a lawyer takes a share of a client's recovery and can thus become an overnight millionaire by getting a jury mad enough at the opponent.

American litigation, by contrast, is rapidly turning into an industry boldly and openly run for profit. Houston lawyer Joseph Jamail, for example, is said to have pocketed $ 400 million for his win in the Texaco-Pennzoil case.

But the problem goes much deeper. Our legal procedures give lawyers and their clients remarkable powers to tie up opponents and make them spend years and fortunes responding to a flimsy case.

Today's complainant can typically drag an opponent to court with little or no explanation of what he is supposed to have done wrong, then compel him - in what can amount to a gross invasion of privacy - to answer endless, inquisitorial questions and release private memos and documents that may or may not reveal any wrongdoing.

American courts are often willing to admit into evidence the testimony of expert witnesses, hired by one side or the other, who for a fee will swear to scientific theories ranging from the dubious to the downright wacky. In recent years, money has changed hands in American lawsuits on the strength of solemn expert avowals that car crashes cause cancer; that minute levels of pollution in the environment cause ailments from measles to gallstones; that various commonly prescribed drugs, held to be safe by the federal Food and Drug Administration, cause birth defects, and so forth.

Over the last few decades, both courts and legislatures have greatly loosened the rules of the game in litigation. Congress and the Supreme Court cooperated in a series of rule changes in the early 1970s; state lawmakers and judges have followed suit. The idea was always to help those wishing to sue - but one of the effects was always to pile new burdens on those responding to suits.

Defending a lawsuit over a major personal injury, such as paralysis or a birth defect, is now reported to cost between $ 500,000 and $ 2 million. That can provide an overwhelming incentive for defendants to offer a settlement, even when they are convinced of their innocence.

A Harvard study of New York hospitals indicated that in the substantial majority of cases where lawsuits were filed, the doctors had not in fact been negligent. But inevitably many of those cases won sizable out-of-court settlements. According to a report a couple of years back, every neurosurgeon in Washington, D.C., has been sued. So have between 70 and 80 percent of obstetricians.

When disgruntled unionists torched the Dupont Plaza hotel in Puerto Rico, lawyers for fire victims sued not the individual arsonists (who didn't have deep pockets, after all) but hundreds of companies that made flammable items on the scene, from wallpaper to bar stools to carpeting. They even sued the company that made the slot machines in the hotel casino. These target companies, faced with having to pay joint shares of a defense effort running to tens of millions of dollars, had to buy their way out of the suit for sums ranging from $ 250,000 to $ 500,000 on up.

The cost of divorce also has risen steadily, as the techniques of the new litigation - endless discovery probes into bank and business records, blame-mongering about every conceivable issue, the deployment of hired experts to testify in areas ranging from accounting to child psychology - have invaded family law. More lawyers are adopting "bomber" tactics meant to grant no mercy to the other side. One big Texas divorce was last reported headed toward a combined legal-fee total of $ 10 million.

Fear of lawsuits paralyzes whole areas of commerce, medicine, recreation and family life. Frequently sued organizations and persons all too often become bureaucratic and adversarial, having learned to see each new customer as a potential opponent. Surgeons insist on videotaping elaborate "informed-consent" rituals to fend off claims of failure to warn. Employers stop giving candid job references. Owners post country land against hunters and hikers. Parents locked in custody battles feel imprisoned in their jobs and routines, lest the opponent seize on any nonconformity and run to court with it.

Yet things could be different. Other countries recognize that litigation is a destructive, unfortunate thing -- sometimes a necessary evil, but prone to abuse and exaggeration. So they maintain rules and procedures, both in formal law and through self-regulatory efforts by the bar, designed to screen out the lame complaints from those that are well-founded. They try to make litigants think twice before pressing a weak case or defense - most notably, by requiring the losing side to reimburse the winner's legal fees at the end of a case. And they take care to keep law as a profession that tempers the zealous pursuit of courtroom victories with ideals of honor and scrupulous impartiality.

Why don't we?

November 3, 2005

Suing Ourselves To Death

[originally published in the Washington Post, April 28, 1991. Excerpted from The Litigation Explosion (E.P. Dutton/Truman Talley Books, 1991)]

Marie and Anthony B. of New Orleans were divorced in 1978 after a 10-year marriage. Marie was awarded custody of their 2-year-old son Terry. Within a year of the divorce decree, Anthony sued her to win custody of the boy but did not get it. He sued again in 1980, and again the next year, each time without success.

In 1983 the child, then 8, visited his father for Christmas. Rather than send him back, Anthony enrolled him in a local school, later claiming this was done with Marie's consent. But a court credited Marie's story that it had happened against her will. When the school year ended, Terry returned to his mother. On his next visit to his father, however, Anthony filed again for custody.

The suit ground its way forward and finally came up for trial. The court found that Marie was highly fit as a parent and that the boy had flourished under her care. End of case? Just the beginning. Under Louisiana's 1977 child custody law, the court explained, it mattered not how fine a home Marie had provided; the only question was whether Anthony might perhaps provide one that was even better. Apparently swayed by a wish to avoid another change of schools, and by the boy's expressed inclination to go on living with his father, the court ruled for Anthony. After two appeals by Marie, the court sent the case back to the trial court. Thus, after courtroom fighting stretching over eight years, no end was in sight for this wretched family.

Custody disputes are as old as Solomon, but the fight between Marie and Anthony was in its own way at ground zero of America's litigation explosion. It shows the effects of distinctive changes in what our courts try to do when they hear lawsuits.

Until not long ago, most American courts resolved custody disputes through "mechanical" rules or presumptions. If the parents had agreed on custody at the time they separated, the agreement stuck. Otherwise, the mother beat the father, at least where the children were of "tender years." Both mother and father beat third parties. Once custody was awarded, it tended to stay put.

These rules of thumb were not the last word, and sometimes the calculations got more complex. But judges could dispose of most cases in a fairly rigid way, with an air of looking up the answers as from a cookbook or logarithm table.

The drawbacks were obvious. By disposing of cases wholesale, the law deliberately turned its gaze from individual equities. Surely, critics urged, every child and parent deserved a searching look at his or her own personal situation, with as much warmth and personal attention as a court could muster.

Through the 1970s and 1980s the mechanical presumptions were weakened, usually with little fanfare. A 1982 case came to symbolize the new approach. In that case, a New York court switched custody to a father on the grounds that while the mother was not at all unfit, the father now appeared more fit -- the "sole criterion" being the "best interests of the child when all applicable factors are considered."

The formula sounded so reasonable that it spread rapidly around the country. The "best interests of the child" standard, it soon became apparent, has three interlocking features. First, it provides what might be called hair-trigger litigability. To get into court, you need not assert that a switch would make the child better off by a mile; a millimeter will do.

The second feature is subjectivity: No two parents, judges or hired experts ever quite agree on the precise content of a child's best interests. Is it better off with a parent who hews to higher moral standards, or one who is more affectionate? With a parent who will spend more time looking after it, or with one who will arrange superior schooling? A lot depends on which judge you draw, and what mood the judge is in this morning.

The third feature is that everything comes to be relevant and nothing, as the lawyers say, dispositive. Does your ex swear? Smoke? Gamble? Watch too many soap operas? Does he roam the beach gathering driftwood? Do the neighbors find her stand-offish? Perhaps none of these peccadillos significantly endangers a child, but all can have some effect and you never know what will tip the balance. So it can't hurt to bring them all up.

As the courts left off trying to be like answer machines, they started to become more like hot-tub discussion groups. ("Tell us _all_ about the relationship.") Civil libertarians were soon expressing unease about custody litigation: parents were feeling pressured toward conformity, and privacy was getting lost in the trample.

The "good-parent" wars turn out to have made surprisingly little difference in custody outcomes. Most children still go to the mother, and the exceptions tend to come in the same old areas. And yet the effects have been profound. To avoid custody battles, for example, many mothers will make major concessions on financial issues. Knowing this, many lawyers for fathers deploy the custody weapon even if their client is not all that keen to take the kids. As for the children, a distinguished battery of psychologists, social workers and sadder-but-wiser judges have by now concluded that the sheer experience of being fought over for years can endanger the emotional health even of a normal child with good parents.

The maternal-preference rule may or may not embody any timeless wisdom about the special bond between mother and child. Actually, as a rule, it is of relatively recent vintage: For a long time, it was the father who got presumptive custody. What is important, almost more than which rule prevails, is that there _be_ a rule, and one as clear, knowable and universal -- as mechanical, in short -- as can be. A good rule is comprehensive, disposing of run-of-the-mill cases so courts can concentrate on the unusual. It is objective, so different judges can hope to rule the same way, and the parties themselves can have some hope of agreeing on how the law will treat their case. And it is clearly spelled out in advance, so everyone can know where they must toe the line.

For a very long time the law in this country, and in England before that, showed an overwhelming preference for fixed rules over fuzzy standards. Some rules have survived more or less intact to our own day. Take the idea of an age of majority. When is someone old enough to get married, or sign a binding contract or order a drink in a bar? If the law were fully alive to human realities, it would entertain much litigation on this subject. Instead it promulgates a no-thinking-required rule -- count the birthdays -- lest it cast perennial suspense over the eligibility of a million bachelors, the validity of a million credit cards and the retention of a million liquor licenses.

How should we behave on the highway? One familiar rule holds that if you bump into the driver ahead of you, you pay for the damage, even if he slammed on his brakes for no obvious reason. If courts tried to work out responsibility on a case-by-case basis, they'd find it hard to distinguish the occasional innocent rear-car driver from all the tailgaters. And the simple rule of thumb provides a generally sound maxim: Pay more attention to the car in front than to the car behind. As a group, drivers benefit. When does a binding contract come into existence if you are negotiating by mail? In principle, perhaps, when there's a "meeting of the minds." But minds are annoyingly inscrutable. Hence the law's "mailbox rule," which provides a fairly objective trigger: You're both locked in when you drop your letter of acceptance into a mailbox.

Of course, no preannounced rule of thumb ever quite fits the perceived merits of all the cases that come in. When the immensely influential group of thinkers known as the Legal Realists came along early in this century, they launched a devastating attack on the effort to maintain clear, knowable-in-advance legal rules. In fact, they said, judges were strongly tugged by their sense of the equities of a case, the policy of society as a whole, and other factors outside the letter of the law; and they had a dozen ways to manipulate cases to make them come out according to these lights.

Language itself, for starters, was slippery: The town elders might think they were being plain enough when they banned vehicles in the park, but did that mean a court had to apply the law to bicycles? Wheelchairs? A statue of the general in his Jeep? There was a malleable quality as well in the way a case's facts were "characterized" among legal categories. Most devastating, there were so many different precedents, maxims and canons of interpretation that by picking and choosing, a judge could steer cases to any desired destination point. Why not be candid? Why not drop the answer-machine pose, and announce openly that the reasons for decisions were not easily pinned down?

Even the traditionalists had resigned themselves to a considerable tincture of indeterminacy in a few areas of the law. The whole concept of "negligence" in injury cases was sadly amorphous, with many outcomes unguessable until a jury came back with a verdict. A dispute over whether someone named in a will exerted "undue influence" over its maker requires a study, by circumstantial evidence, of what commentators have called the psychological world of the dead person. The antitrust laws from early on were vague and open-ended in their commands.

This was not an encouraging sign, since negligence, will-contest and antitrust disputes were all notorious for their expense, vexation and scope for litigious zeal. But the realists carried the day. From the courts' undeniable failure to provide perfect guidance or apply wholly neutral tools of analysis, it was deduced not that they should try harder but that they should stop trying so hard. The basis of the custody-challenge explosion thus turns out, with appropriate substitution of subject matter, to be the basis of most of the rest of the litigation explosion.

Vagueness creeps into the law on the padded feet of words and phrases like fairness, equitableness, good cause, good faith -- pillowy expressions that tend to soften the blow of what is in fact a grant of wide judicial discretion over some area. Consider the splitting up of the property in a divorce. Most states have embraced the "equitable distribution" of property, a nice-sounding phrase that calls for a long fight on everything of conceivable relevance.

Then there's another current favorite, the "balancing test" that instructs future judges to weigh 10, 20 or 30 factors. No method is provided for figuring out which factors should trump which others, or what to do when six factors cut one way and eight the other.

Lawsuits against manufacturers over injuries in the use of products, one of the biggest growth areas in litigation, is handled through one of the most amorphous balancing tests yet invented. Someone hurts himself using a caustic drain cleaner or trying to pull a carving knife out of its original holder. Should the product maker have to pay? The most widely used set of modern guidelines invites the jury to consider at least a dozen factors including the likelihood that users will hurt themselves with the product; the probable seriousness of those injuries; the ability of users to avoid dangers by being careful; the user's likely awareness of the dangers; and the general public's knowledge of the same thing.

Got that figured out? There is much more. The bewildered jury must then consider the product's usefulness; whether it could have been made safer without making it less useful or "too expensive to maintain its utility"; whether other products might serve the same need and not be as unsafe; and on and on. Not surprisingly, many companies have decided to flee the uncertainty by declining to market useful products often found on the scene in injuries, from football helmets to life-saving drugs.

Today's legislators are making things far worse. Federal appeals judge Alex Kozinski writes that it "seems as if legislators now pass statutes because of, not despite, their lack of clarity. By using vague language, legislators can avoid making the difficult political choices that they have to confront when drafting a statute precisely."

Many books could be written on the impossibility of getting clear answers to single questions like, "Is this a legally adequate environmental impact statement?" or "Is this a lawful way to draw the bounds of city council districts?" or "Does this firefighting exam unlawfully discriminate against the handicapped?"

Theory often follows practice, and now some members of the leftish Critical Legal Studies movement have come along to proclaim that indeterminacy is not just a tolerable evil in the discipline of the citizenry but a downright good. Leading C.L.S. light Duncan Kennedy of Harvard, in a well-known article, has suggested that vague standards are preferable to definite rules precisely because they give citizens the sense that the totality of their behavior is under scrutiny by the tribunes of society. But while lofty ideals of jurisprudence can sometimes seem remote from the needs of everyday life, legal determinacy and predictability have the homely as well as the transcendent virtues. They allow us to plan our dealings in times of legal peace. They take on new importance at the first signs of a quarrel, when we want to know whether we have fallen short of our duties, so we can make amends, or stand on firm ground, so we can frame demands. If the quarrel goes to litigation, reliable law encourages a prompt settlement or, if worst comes to worst, cabins the bounds of what is at stake in a trial. Afterward it provides reassurance that the verdict hung on objective factors rather than bias or luck and quells the nagging suggestion that fighting just a bit harder might have turned the outcome.

The surest way to destroy predictability is to tell citizens and judges alike to decide what to do when interests clash by looking into their consciences. Until that happy day on Canaan's shore when all consciences converge, the only result can be a Babel of disagreement. Today's voluminous case reports are filled with lawsuits between respectable citizens whose sense of fairness inevitably differs but who would not for that reason, in an era of clearer law, have had to come to legal blows. Where people of honest intention are suing each other in large numbers, it is because they have been baffled in their efforts to learn in any other way what the law expects of them. "No profound social theory is needed to explain why people are more litigious today than ever before," as Richard Epstein of the University of Chicago puts it. Legal uncertainty "breeds litigation . . . . It's that simple."