A Stitch in Haste

The twin canards of "sue the deep pockets" and "it's never the parents' fault" strike again:

In the lawsuit, the parents allege that Texas resident Kiley Ryan Bowers, now serving a nine-year prison term in California, "utilized the site to contact, seduce, meet, assault and then harass and torment" their 15-year-old daughter, Kristin Helms. Bowers pleaded guilty last year to two counts of interstate travel to have sex with a minor and transporting child pornography. Helms committed suicide while an investigation against [Bowers] was pending.

The parents allege that MySpace should be held liable, and sued both Bowers and the site. "MySpace provides a ready means for sexual predators to easily gain direct access to young, innocent children that those predators would otherwise have no ability, or a substantially decreased ability, to locate or contact," the suit alleges.

It may well be true that MySpace "provides a ready means for sexual predators to easily gain direct access to young, innocent children" (we'll leave aside the gratuitous use of the word "innocent" and stipulate that the sexual intercourse between the two, while clearly not forced, was also not strictly "consensual" given the girl's age).

But "providing a ready means" is simply not a tort. Where, exactly, is the negligence by MySpace? Putting aside the pesky provisions of the Communications Decency Act (i.e., that insulate Internet sites from liability related to content posted on them), basic negligence law requires that a duty existed and was breached for there to be liability. What, exactly, was the duty owed by MySpace to Helms or her parents?

Was it this?

MySpace recently agreed to implement measures aimed at protecting youngsters on the site, including banning known sex offenders from the site and setting defaults on the profiles of teens to "private," so they can't easily be accessed by strangers.

Just two problems: (1) Bowers wasn't a "known sex offender" at the time (he certainly is now); (2) they didn't meet on MySpace — they met via Yahoo! IM and migrated their online contact to MySpace after the fact (i.e., Bowers was not a "stranger" to Helms when they started interacting on MySpace).

More:

They [her parents] took away her computer, shut down her MySpace.com profile and forbade her to contact Bowers. But Kristin Helms secretly communicated with Bowers, calling him behind her parents' back and using school computers to contact him.

Curious that the parents are not suing the school. That would be a far more viable negligence claim (it is trivial to block a website on a computer).

In any case, not every tragedy is a lawsuit, not every party involved in a criminal act is a criminal and not every party in a tortious act is a tortfeasor. The parents should certainly feel free to pursue Bowers to the fullest extent the civil law allows. But MySpace simply isn't responsible, any more than the store that sold Bowers the shoes he wore to his meetings with Helms or the station that sold him the gas he used to drive to her.

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Meanwhile:

A federal judge in New York ruled on Tuesday that a lawsuit contending that an NBC television series on pedophiles had played a role in the suicide of a Texas prosecutor two years ago could move forward.

The decision was a defeat for NBC Universal, producer of the "Dateline NBC" series "To Catch a Predator," which had asked the judge this year to dismiss the lawsuit.

The $105 million suit was originally filed in July by Patricia Conradt, the sister of Louis W. Conradt Jr., an assistant district attorney in Rockwell County, Tex., who shot himself in November 2006 as he was about to be arrested by the police and accused of trying to solicit a minor online.

The alleged tort is the infamous "intentional infliction of emotional distress," which is always a thorny legal question that can vary widely from state to state. Another fascinating claim that the judge did not summarily dismiss is that NBC staff essentially became "state actors" — de facto police — and that the Fourth Amendment therefore applies to them (for example, a SWAT team was deployed even though the suspect had no history of violence — was that done for NBC's cameras, and was it constitutional?).

Stay tuned. (No pun intended.)

"The people of Alabama sued the state, which means that the people of Alabama — sued themselves..."
--Lewis Black

Government bureaucrats, posing as shareholder advocates, are suing Yahoo!'s* directors for having committed the sin of actually "directing" the company:

The lawsuit was filed in Delaware Chancery Court on Thursday by lawyers representing Detroit's police and fire retirement system and general retirement system, as well as "all other similarly situated public shareholders."

According to the lawsuit, Yahoo's board is pursuing "value-destructive" third-party deals in an effort to fight off Redmond, Wash.-based Microsoft, which on Feb. 1 announced a takeover bid of $31 per share in cash and stock, a 62 percent premium over Yahoo's previous day's closing price.
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"Yahoo's directors cannot 'just say no' indefinitely to legitimate acquisition offers," the lawsuit reads.

Um, why not?

Directors are not elected by shareholders simply to fetch the highest bid for the company. They are paid to — wait for it — direct. Just because directors take an action with which you happen to disagree, that does not mean you get to sue over it.

On mundane operational matters, shareholders in fact never get to sue over it. That's called the business judgment rule and it reflects the uncontroversial notion that judges are not better equipped to run a company than the people who actually do run it.

On major strategic questions — including being bought out by another company — the legal analysis becomes a bit more complicated, but the common sense analysis really shouldn't. More should be required before shareholders are allowed into court than, "We disagree with the directors." So what?

If the directors are engaging in illegal conduct (e.g., authorizing bribes to politicians), then shareholders should have the right to try to stop it (and they do have that right). If the directors are (literally) looting the company, then shareholders should have the right to try to stop it (and they do have that right).

But this isn't that.

In the absence of bona fide malfeasance, the sole shareholder-based remedies to disagreeing with a corporate board should be: (1) sell your shares (complete with your 62% gain since the Microsoft offer was announced), or (2) launch a hostile bid to oust those directors (which — surprise — Microsoft is doing).

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Meanwhile, it's interesting that it is bureaucrats managing government employee pension funds who are suing. As I've mentioned previously, such activist shareholders often have their own conflicts of interest to address.

Isn't it ironic that government bureaucrats usually try to block major mergers, while here they're trying to compel it?

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As for the Lewis Black quote, suppose the directors and officers are held liable for some form of malfeasance. Will that vindicate the shareholders? No. The directors need not worry, since they will have so-called "D&O insurance" to insulate them. And guess who pays for a corporation's D&O insurance? That's right: the corporation itself, which means the stockholders pay for it. Go figure.

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*What somebody really needs to do is sue Yahoo! — and YUM! Brands — for putting exclamation points in their official corporate names. Do not want.

This may be either one of the most frivolous or one of the the least frivolous lawsuits of all time:

Audience participation is a staple of the Blue Man Group. But apparently, one audience member attending the Chicago show believes cast members took their surreal antics too far by forcing a video camera down his throat during a performance in October 2006.

James Srodon of California filed a lawsuit Wednesday against the group. In the lawsuit filed in Cook County Circuit Court, Srodon says the Blue Man actors used the "esophagus cam" to project an image of Srodon's mouth and throat onto a large screen for the audience's amusement.

The lawsuit alleges the Blue Man actors circled him, held his neck and arms and "forced his head back" to insert the camera. It claims he was restrained from removing the camera from his mouth.

I've never attended a BMG show, but I was once the victim of tortious "audience participation" at a similar show, De La Guarda. Long story short: I had gone straight from work and was wearing a suit, and was targeted for a "hug" by a performer dripping with wet toilet paper. I was not amused. The theater offered to pay my dry cleaning bill. Fin.

So I'm not quick to reject allegations of audience abuse at such an event. But forcible restraint and insertion of camera down into a non-volunteer's mouth? Do they really do that at BMG shows? Those who have attended performances please leave a comment.

If it happened exactly as Srodon describes (big "if"), then BMG doesn't have a leg to stand on. No waiver or consent defense would ever get past a judge, no matter what's printed on a ticket or in a Playbill or what announcements are made beforehand. Maybe if they show a video when the show starts: "If you remain in the theater, then this may happen to you..." Again, anyone familiar with what if any warnings are provided at the shows?

The only question would be one of punitive damages, which under common law (I can't speak to Illinois state law) would clearly be warranted for such a battery (again, taking the plaintiff's version as true). I'd probably be eager as a juror to shove some punitives down BMG's throat. How about you?

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Via Fark, where several commenters insist that the "esophagus cam" video is prerecorded. I'm not sure how that's dispositive or even probative to a claim of tortious battery. Contrary to the media report, it's not entirely clear that the plaintiff is alleging that the camera was forced down his throat -- only into his mouth.

As for the "what's the big deal" defense: That's easy to say when it's not your mouth. You take the plaintiff as you find him; if he happens to be thin-skinned with no sense of humor, then so be it. Finally, one Fark commenter suggests the the lawsuit might simply be a publicity stunt by the group itself — "guerrilla marketing," etc.)

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By way of comparison, here's another "artist" (defined very loosely) who is careful to obtain consent for her "art" (defined very loosely).

...you might get it:

IBM's response to a lawsuit in which the company was accused of illegally withholding overtime pay from some technical employees[:] IBM settled the case for $65 million in 2006 and has now decided that it needs to reclassify 7,600 technical-support workers as eligible for overtime.

But their underlying salary -- the base pay they earn for their first 40 hours of work each week -- will be cut 15 percent to compensate.

IBM spokesman Fred McNeese said the move would not save the company any money, because the affected employees generally should find that overtime pay makes up for the salary cut. However, internal documents obtained by The Associated Press indicate that many workers will lose money.

"If you don't like it, then quit..." is of course the beginning, but not necessarily the end, of the analysis. If IBM breached employment contracts or committed fraud upon its job applicants to induce them to work for the company in the first place, then shame on IBM.

Nevertheless, the underlying premise of the disgruntled workers -- that one compensation arrangement is intrinsically "more fair" than another -- is unsustainable. An employee does the work she does and gets paid what she gets paid. That and that alone is where questions of fairness must lie. Why should it matter whether compensation is called "base salary" or "overtime" or "zoop"? What does an employee provide IBM, and what does IBM provide the employee? That is where the question should begin and end.

(Questions of equal pay for equal work, compulsory union dues, glass ceilings, ENDA, etc., are separate topics altogether and best left for future blogposts.)

This sturm und drang is reminiscent of my previous post on paid holidays, which are a fiction. There is no such thing as paying (or being paid) for non-work; there is only paying for work itself. Changing one's paycheck terminology -- just like changing one's work schedule -- is, bottom line, merely rearranging deck chairs: just hope that your ship isn't sinking while you're doing it.

No sooner did this lawsuit wilt from my aggregator...

If Leroy Greer wants to take 1-800-flowers.com to court for telling his wife he sent flowers to his girlfriend, he'll have to do it elsewhere.
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Greer, a luxury car salesman, sued the company here in August claiming it improperly sent a thank you note to his home address, alerting his wife that he'd bought flowers. A company employee faxed his wife the receipt, including the love note Greer sent with the red roses and stuffed animal.

The message on the card: "Just wanted to say that I love you and you mean the world to me! Leroy."

The dismissal, in Texas, was only on jurisdictional grounds. The florist's adhesion contract specifies that it can only be sued in New York. No word yet on whether the adulterer will refile. (Incidentally, we all agree that adhesion contracts are not evil manifestations of unequal bargaining power but rather wonderfully catalytic tools for enabling low-cost mass production -- right?)

...Than this lawsuit burst into bloom:

The wedding was lovely, except for the flowers: They were the wrong color.

So says the bride, Elana Glatt, who was so miffed at the florist that she filed a lawsuit alleging breach of contract.
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Not only that, the lawsuit, which was filed Friday in state Supreme Court in Manhattan, alleges that the hydrangeas were wilted and brown, and arranged in dusty vases without enough water.

The lawsuit says the offenses caused "extreme disappointment, distress and embarrassment."
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They [sic] flowers cost $27,435.14. The lawsuit asks for more than $400,000 in restitution and damages.

Care to guess what Ms. Glatt does for a living? Hint: She's not a florist.

As mockworthy as it may sound, I remained convinced that no one should be allowed to practice law unless and until they've watched at least one complete season of Judge Judy.

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As for the law in both cases, so called "consequential damages" -- "The bad flowers ruined my entire wedding!" / "The good flowers ruined my entire marriage!" -- are generally not compensable unless the contract specifically calls for such damages in the event of breach. A florist is not a wedding insurer unless you pay him to be one. (In the adulterer case, it's unclear whether there is even a breach of contract in the first place; we can assume a material breach in the wedding case). And of course punitive damages are almost never permitted for breach of contract -- always try to tack on an intentional tort when suing someone.

To the extent that any damages are warranted (a dubious proposition from the outset), the correct measure in the wedding case would simply be difference between the price paid for the flowers ($27,434.14) and the fair market value of the arrangements as delivered. And, my lack of loathing for the rich notwithstanding, anyone who can afford $27,000 for flowers can also afford a hobby other than filing frivolous lawsuits).

It is perhaps the single most asinine claim in all of antitrust law, if not in all of economics: the idiotic assertion that lowering prices can somehow be bad for consumers.

But the notion just keeps showing up in malcontents' playlists:

Apple Inc., along with its chief executive and exclusive U.S. iPhone wireless partner AT&T, have been hit with a new lawsuit from a disgruntled customer who charges the trio with a variety of offenses stemming from the recent iPhone price cut.
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Li included in her 8-page complaint historical stock graphs that show Apple's share price to have risen in between the time it released iPhone in late June and when the company instated the price cut. She argues that this is proof that there was no sound reason for the cut, which she equated to "underselling."

"Market conditions did not require Apple to change its price," Li's attorney, C. Jean Wang of Wang Law Offices, PLLC wrote in the filing. "iPhone was selling very well because Apple's stocks [sic] were increasing since August 16, 2007 and rose as high as $144.16 on September 4, 2007, the day before Apple announced that it was cutting the price of iPhone."

A few hasty stitches:

First and foremost, could someone please explain how, exactly, lowering prices hurts consumers?

Second, please point out where, precisely, in Apple's EULA, TOU, etc., they promise never to lower prices in the future?

Third, what exactly are the "market conditions" at issue here? Who, other than Apple and its customers, gets to be the arbiter of which "market conditions" matter, how they matter, and what they "require" Apple to do?

Fourth, a consumer has the ultimate power over a business: the power not to buy from it. What greater power could one possibly want? Steve Jobs (unlike the government) cannot hold a gun to your head and say, "Buy this!" What better definition of "impotence" could one conceive?

There are other elements to the lawsuit (e.g., the two-year service agreement, termination fees). But this case would be as good a time as any to slay once and for all the fantasy-land dragon of "underselling." Lower prices are better for consumers. Always.

(Via Catallarchy.)

Wired Science Blog is shocked, shocked to learn that a scammer can actually sell sugar pills as a panacea:

In the last year, Texas-based Mannatech has sold over $415 million worth of its flagship pharmaceutical [sic], Ambrotose. They've relied largely on word of mouth and customer-to-customer sales, with Mannatech providing scientific information about the mechanism that allegedly makes Ambrotose effective against everything from HIV to cancer.

So what exactly is in Ambrotose? Sugar. And while Mannatech cites as evidence for Ambrotose's effectiveness the emerging field of glycobiology, which has shown how important sugar is to cellular communication, the field's leading researchers say that people already produce all the sugar they need.

Yes, there are indeed unethical "capitalists" who prey on the gullible. Point conceded. On the flip side, no honest libertarian would argue that there is a "right to use false advertising."

Meanwhile, here is the comment I left at WSB:

What is your basis for calling it a "pharmaceutical," since Mannatech is almost certainly not calling it that themselves (the label clearly says "dietary supplement")?

The point is relevant precisely because the FDA goes out of its way not to regulate scams such as this, while they do not hesitate to hesitate when it comes to approving new bona fide pharmaceuticals.

To the extent that there should even be an FDA, its pharmaceutical regulatory powers should be derived from economic efficiency arguments. Specifically, if the FDA determines that a drug is "safe and effective" (which are precisely the criteria for FDA approval today), then the manufacturer -- assuming no malfeasance in the approval process -- should be forever shielded from product liability resulting from that drug. In other words, no judge or jury should ever be allowed to find that an FDA-approved pharmaceutical is "defective" in a product liability lawsuit.

The "no malfeasance" qualifier is important: a pharmaceutical company that lies to the FDA -- or to physicians or consumers -- should obviously get sued up the wazoo if something goes wrong with their drug; that's a different fact pattern altogether. And if the FDA somehow drops the ball, then let it be sued, not the drug companies.

As for these rip-off supplements, "nutraceuticals" and the like: the opposite of "safe and effective" is "harmful or useless." But that of course should not be the standard for FDA regulation. It's a tempting warm fuzzy feeling to insist that "the government should do something" about the very existence of useless products such as Ambrotose (apart from any misleading claims -- again, that's a very different issue). But in reality the government has no business protecting fools from themselves. Being fooled is not synonymous with being defrauded. The latter falls within the proper scope of government; the former does not.

Those knowledgeable about such things can and should expose Ambrotose for what it is. But they should stop short of breaking out the governmental sledgehammer over it.

Can you spot the logical flaw in this reasoning?

This year, each of the eight associate justices of the Supreme Court will earn $203,000. The only woman and the only African-American on the court are paid the same as their six white male colleagues. Only Chief Justice John G. Roberts Jr. earns more than everyone else, $212,100. Their pay is set by Congress, and it is a matter of public record.

Congress should pass legislation mandating that all workplaces create this kind of transparency by requiring companies to post salaries.

One would think it isn't very difficult: You pay a part of John Roberts' salary; you do not pay part of mine. Stated differently: Mind your own damn business!

What kind of dysfunctional thought process would underlie the conclusion that the best way to guarantee the right of non-discrimination (the victims from denial of which are few) is by obliterating the right of privacy (the enjoyers of which are many)? Add to the calculus that "non-discrimination" is strictly a statutory right and that "privacy" is a constitutional right, and the proposal becomes even more absurd.

Agree or disagree all you want with the Supreme Court's recent holding in Ledbetter v. Goodyear Tire regarding when the statute of limitations for pay discrimination claims should commence. The fundamental jurisprudential premise remains: It is up to the plaintiff to prove her case. The government has no business conscripting innocent bystanders and their private matters in order to prove it for her.

As was my point in this post — it is one thing to drag a defendant kicking and screaming into a courthouse. Should the government really be in the business of pushing plaintiffs into court too?

It is not a proper function of government to ride roughshod over the privacy rights of parties who are both disinterested and uninterested in who makes what. Be disgruntled all you want. Quit if you're unhappy; sue if you've believe you've be wronged.

But leave me and my pay stub out of it.

Back in February, I wrote the following regarding eHarmony's bigoted policy excluding gays:

Of course, private businesses do (or at least should) have the right to discriminate as they see fit. It is, after all, a "free" market.

Now that eHarmony is being sued for sexual orientation discrimination, like-minded folk are saying pretty much the same thing. And that's fine.

Just one pesky detail: The lawsuit was filed in California, apparently under that state's over-reaching Unruh Civil Rights Act:

51.5. No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined[.]

California's Civil Rights Act of 2005 added sexual orientation to the list of protected classes.

So, as I tried to explain in this post about another widely lambasted Unruh lawsuit, it is all-important to distinguish between insisting that the eHarmony litigation is "silly," "misguided," "petty" or any similar word (which may well be the case), and claiming that it is "frivolous" (which is simply not the case). Under the plain language of California law, this is obviously not a frivolous lawsuit. If anything, it is the Unruh Act that is frivolous.

That's the first part of the analysis; here's the second part:

Whoever denies, aids or incites a denial, or makes any discrimination or distinction ... is liable for each and every offense for the actual damages ... up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars[.]

Under normal circumstances, a gay excluded from eHarmony would, at best, be entitled to actual damages — which would be what exactly? A pat on the back and some Kleenex?

But this is California, which has announced to the whole world: "Come to California, find any incident of discrimination, no matter how minuscule or inconsequential, and you win at least $4,000!"

With that kind of incentive system, of course men are going to sue bars for having (discriminatory) "Ladies Nights" — $4,000 of ka-ching! (per plaintiff!). Of course someone is going to sue the California Angels for a (discriminatory) Mother's Day giveaway — $4,000 of ka-ching! (per plaintiff!). And of course some inventive gay is going to figure out that eHarmony can be sued under Unruh — $4,000 of ka-ching! I'm mad that I didn't think of it myself! (Note also that the eHarmony lawsuit is seeking class action status — $4,000 x how-many + punitives = mega-ching!

Incidentally:

...four thousand dollars, and any attorney's fees that may be determined by the court in addition thereto...

Is it any wonder that there are California law firms that specialize exclusively in representing Unruh plaintiffs?

It's quite simple really: When the government subsidizes something, you get more of it. The State of California has enabled and actively encourages people to sue for the smallest incidents of discrimination, even when there are no real damages.

Be indignant over the eHarmony lawsuit all you want. But don't be surprised by it, and don't damn the plaintiff for doing exactly what the State of California has relentlessly encouraged her to do.

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Note that nothing in this post should be construed as revising my position regarding adding sexual orientation to already existing anti-discrimination laws such as ENDA and the federal hate crimes law. I continue to posit that it is perfectly consistent with libertarian principles to insist that, if you are going to have, as a fait accompli, protected classes such as race, gender and disability, then that list of protected classes should be rationally and fairly compiled — and that requires that sexual orientation be included. Even if "one level of protection for all" is the asymptotic libertarian ideal, it is nevertheless also a libertarian ideal to support going from three levels of protection to two (i.e., by adding gays to the protected class). That is not a step backwards.

More thoughts at no third solution, Hit & Run, Howling Point, PHB.

Some bizarre, and in a few instances scary, law enforcement and litigation stories over the past day or two:

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ITEM: The family of a New Zealand woman who was dependent on an oxygen pump claims she died after the electric utility shut off her power over an unpaid $122 bill. Damn greedy capitalist murderers! (Oh wait, it's a state-owned utility — never mind.)

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ITEM: You may have heard by now about the patently preposterous dram-shop lawsuit by the parents of professional baseball player Josh Hancock, who are blaming their son's 0.157 BAC, "he was hammered, he was speeding, and he was talking on his cell phone to his girlfriend at 12:30 in the morning" (i.e., self-imposed) DUI death on the poor schmucks that he drunkenly missiled himself into on the highway. For a quick and clean summary of the damnably frivolous case, see this excellent analysis from Sports Law Blog. ("The negligence claims ... sound like something from a torts exam.")

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ITEM: A panhandler in upstate New York is challenging his recent arrest under the state's no-begging law, citing the pesky fact that the law was already declared unconstitutional — 15 years ago. An anomalous mistake by law enforcement? Maybe we should ask the 2,300 other people who have been arrested under the apparently void law over those 15 years. (Related posts here.)

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ITEM: A blogger is apparently being sued for defamation — over his blogroll. ("I'm reportedly being sued for maintaining a blogroll that links to a site that links to a site that contains some allegedly defamatory third party comments.") Don't worry, I don't understand it either. (And it's Canada, so who cares anyway?) (Via Slashdot.)

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ITEM: Finally, for those who miss having Mike Nifong around to lambast —

Doug Burns, reigning Mr. Universe, was recently involved in an encounter with Redwood City police while experiencing severe low blood sugar; during the incident, he was handcuffed and clubbed by police who mistook him for inebriated. On May 2, 2007, Doug was arraigned in court on charges of assault and resisting arrest.
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The District Attorney asserts that based upon current evidence, Doug was not in an altered mental state due to low blood sugar, although Doug has reportedly submitted substantial medical documentation to the contrary. Several diabetes advocacy groups have rallied to support Doug, who hopes that his current dilemma will contribute to furthering education about diabetes and hypoglycemia.

If an epileptic seizure can be a valid criminal defense (and it can), then surely insulin shock can too. (Another account of the events here.) (Via Kevin, M.D.)

Assorted instances of loopy litigation:

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ITEM: A woman sues her church after having been "slain in the Spirit" (i.e., falling down) while walking to the altar. I wasn't aware that "smiting" was a tort (or that clergy were vicariously liable for acts of God — shouldn't it be the other way around?). What is not surprising is that there are now allegations of attempted insurance fraud — Holy Whiplash! (Via Fark.)

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ITEM: A spectator at a New York Mets game got hit — not by a foul ball, but by a flying fat man:

Ellen Massey, 58, said the unidentified fat man who crushed her in the upper deck on April 9 was falling-down drunk — and vendors should have cut him off long before his tumble.

"People shouldn't have to deal with drunks flying through the air at a ballgame," said her lawyer, Stephen Kaufman.

MY TAKE: New York has a very pro-plaintiff dram shop law. Point conceded. Still, if Baron Harkonnen fled the scene, then how can there be any admissible evidence that he was in fact intoxicated, let alone enough evidence to secure a civil verdict? This is deep pockets run (flown?) amok. Related post involving the same vendor, Aramark, here.

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ITEM: Lawsuits over harm to pets are of course not per se frivolous. But damage claims can be (W$J) —

The [pet food] crisis has prompted some 50 class action lawsuits against domestic pet-food brands by trial lawyers who are recruiting owners of stricken pets as clients. Under traditional legal precedent, the damages in these cases are limited to what you paid for your pet and what you've spent in food and vet care, plus any additional bills for having your pet treated for food poisoning. But trial lawyers and some animal-rights activists are hoping to persuade legislators and the courts to allow judgments for noneconomic damages, including awards that take into account the pain and suffering of owners.

No one understands the emotional value of a pet more than I do, but this is simply not an option. It's true that there are certain things "you can't put a value on" — so don't try. Civil courts are for addressing grievances over market value — damage to property, health, future earnings, etc., that are either known or objectively estimable. Whenever the law deviates from that principle (e.g., pain and suffering, emotional distress, punitive damages), the system too often goes haywire. And while strong arguments may exist for those three categories of subjective damages (in descending order, in my opinion), the line should certainly be drawn at emotional value of property, including pets. What's next — suing for the "sentimental value" of a negligently destroyed wedding album or bar mitzvah videotape? It is precisely because the value we assign to our pets is on a different plane that we shouldn't cheapen it by vainly trying to attach a dollar value to it.

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ITEM: Finally, the flagship entry —

A grandfather who went on a massive spending spree when doctors told him he would die is taking legal action against the NHS after learning he had been misdiagnosed.
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[H]e quit his job and stopped paying his mortgage, instead splashing out on a lavish lifestyle of hotels, restaurants and holidays.
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[John] Brandrick said that in the year he thought he was dying he spent everything and now he faces losing his house. ... "But if you haven't got any money — it was my fault, I spent it all — they should pay something back.

MY TAKE: To the extent that there was indeed any malpractice (the NHS denies any negligence), then of course the patient is entitled to the damages that were proximately caused by the negligence (e.g., paying for treatments that turned out to be unnecessary). But deciding that you're going to become a moral defective and default on your mortgage does not "proximately flow" from a cancer misdiagnosis — that's just being an ass (for which a lawsuit is not the indicated course of treatment). (Via Kevin, M.D.)

Two interesting stories about lawsuits that may or may not be frivolous.

First is the judge who is suing a dry cleaner over a lost pair of pants — for $65 million:

According to court documents, the problem began in May 2005 when [Roy] Pearson became a judge and brought several suits for alteration to Custom Cleaners in Northeast Washington, a place he patronized regularly despite previous disagreements with the Chungs. A pair of pants from one suit was not ready when he requested it two days later, and was deemed to be missing.
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Because Pearson no longer wanted to use his neighborhood dry cleaner, part of his lawsuit calls for $15,000 — the price to rent a car every weekend for 10 years to go to another business.
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But the bulk of the $65 million comes from Pearson's strict interpretation of D.C.'s consumer protection law, which fines violators $1,500 per violation, per day. According to court papers, Pearson added up 12 violations over 1,200 days, and then multiplied that by three defendants.

I of course, in typical law school final exam fashion, like to analyze such fact patterns based on the common law, the broad legal principles that have developed over the centuries in Anglo-American jurisprudence. I don't need no stinkin' statutes...

And as a matter of common law, this litigation is of course frivolous to the nth degree. At best, the judge would be entitled to the fair market value of the pants, maybe with some incidental damages thrown in for flavor. Clearly there is no right to a rental car to drive to the nearest cleaners for the next ten years. The law is not a ass.

But politicians are.

If there is in fact an applicable "consumer protection law" — a favorite of activist legislators and their bureaucrat supplicants — then who knows what the judge may or not be entitled to? Because the common law — buy him a new pair of pants plus cab fare — was just so inadequate, or obsolete, or whatever gobbledygook the politicians came up with when crafting their law, that they had to "improve it" with a statute. To protect poor defenseless Judge Pearson and his $1000 pair of pants.

"Consumer protection?" Who protects the defendants from pathetic fools like Judge Pearson when they file insane $65 million lawsuits?

I raised this issue previously" over the "Mother's Day" lawsuit against the California Angels. The lawsuit wasn't frivolous, the law enabling it was frivolous: California's silly subject to abuse "Unruh Act," which authorizes, indeed encourages, lawsuits (complete with severe punitive damages) for even the most de minimis cases of gender-based discrimination claims (e.g., "ladies night" at a bar). So too in this case: It is (possibly) an example, not of a frivolous lawsuit, but of a frivolous law.

If you pass a law enabling people to sue, then they will sue. And some will sue for nonsense. And sometimes they might win. This is not a difficult concept — except maybe for activist legislators more dedicated to warm-fuzzy-feeling concepts such as "consumer protection" than to the common sense of the common law.

(POST SCRIPT: In an ironic twist of fate, Judge Pearson may soon become "ex-Judge Pearson" as a result of this lawsuit. "I am the law and the law is not mocked..."?

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Meanwhile, Don Imus is reportedly contemplating a lawsuit over his being fired for his infamous "NHH" comment:

The language, according to this source, was part of a five-year contract[.] It stipulates that Imus be given a warning before being fired for doing what he made a career out of — making off-color jokes. The source described it as a "dog has one-bite clause."
...
But the airwaves are heavily regulated by the FCC. ... So under this argument, the case could turn on whether Imus' comments ... meets the definition of profanity under FCC guidelines.

If nothing else, this is all the more reason to privatize the airwaves (i.e., abolish the always dubious and now patently absurd notion of broadcast frequencies as a "public trust"). Do we really want the hack bureaucrats of the FCC passing judgment on what is and is not "obscene" and what the true meaning of "NHH" is? It was bad enough when the Supreme Court was doing it.

As for any potential litigation, without seeing the contract itself, my first response would be to predict a loss for Imus. Rightly or wrongly, the FCC controls the airwaves (and wants to control all other broadcasting too), and any "one-bite rule" can easily be declared unenforceable as "against public policy" or "void by statute" — which are potential defenses to any breach of contract claim.

Of course, lawsuits are not meant to be won, only settled. And I would not be at all surprised to see this one (assuming it's ever actually filed) also settled rather than litigated.