In April of last year the California Supreme Court ruled that a large class of service workers historically categorized as independent contractors, those who are under contract with a host enterprise that performs the same kind of service they do, have to be treated as employees and brought under the full range of employment laws. Some labor advocates cheered, but many California workers did not. “I lost my entire staff,” said owner Anthony Giannotti of downtown Sacramento’s Bottle and Barlow barber shop. All seven of his barbers quit, he said. The ruling is expected to disrupt the marketplace for cosmetologists and tattoo artists, yoga and Pilates instructors, and even FedEx delivery personnel. [Angela Greenwood, CBS Sacramento in September]
- Teens in Gardendale, Ala. need a business license to cut grass and it’ll cost a cool $110; it was grown-up lawn servicer who threatened to call town if he saw teen cutting a lawn again [WBMA, UPI]
- “It Isn’t Just Hamburger Stands That Will Be Shut Down By ADA Lawsuit Filers. My Website And Countless Others Could Be” [Amy Alkon, related Mark Pulliam, L.A. Times, more on web accessibility]
- Ten years later, recalling when Nebraska state senator Ernie Chambers filed a lawsuit against God [Atlas Obscura, our coverage]
- 15% of Mumbai’s housing stock lies vacant, and 12% of India’s. Blame state housing mistakes and regulation of tenancy [Alex Tabarrok]
- “The Progressives Took Away Our Right to Contract. It’s Time to Reclaim It” [Iain Murray, FEE]
- “In that version, she didn’t do anything wrong — it was the other sexy cop who demanded money.” [Lowering the Bar on Ninth Circuit decision in Santopietro v. Howell, which breaks new ground as the first reported decision to use the phrase “sexy cop.”]
“Typical medical malpractice reform efforts are aimed at lowering costs for physicians, but what if many problems associated with medical malpractice could be handled via contract?” In a new Cato Podcast with interviewer Caleb Brown, I discuss that subject and go on to talk about issues in malpractice reform, including arbitration and the “nod to federalism” in this year’s Republican medical liability proposal in Congress. Related: reasons why Cato adjunct scholar Jeffrey Singer is skeptical of federal reform.
The idea of minimum price regulations saw its American heyday during the New Deal, where it was a prime component of FDR’s National Recovery Administration. And the 1935 Supreme Court decision striking down the NRA as unconstitutional didn’t affect state laws like the one that has gotten Grand Rapids-based grocery chain Meijer in trouble for allegedly pricing its goods too low [Michigan Live]:
“Wisconsin is among 16 states with minimum markup laws that have price protections for retailers, according to the National Conference of State Legislatures.
“This is a bit peculiar for us, we are not accustomed to regulations that limit our customers’ ability to save money when they shop with us,” Guglielmi said.
More: K. William Watson, Cato (“While state laws like Wisconsin’s Unfair Sales Act are relatively rare, the federal government relies on the same bad economics to justify the U.S. antidumping law, which imposes punitive tariffs on imports sold below ‘fair value.'”).
Six months ago the Delaware Supreme Court upheld the right of an enterprise to include a loser-pays provision in its bylaws, specifying that losing shareholder-litigants would have to contribute reasonable legal fees to compensate what would otherwise be loss to other owners. Since then there’s been a concerted campaign to overturn the ruling, either in the Delaware legislature or if necessary elsewhere. But as I argue in a new Cato post, allowing scope for freedom of contract of this sort is one of the best and most promising ways to avert an ever-rising toll of litigation. Contractually specified alternatives to courtroom wrangling have played a vital role, and are under attack for that very reason, in curbing litigation areas like workplace and consumer arbitration, shrinkwrap and click-through disclaimers of liability, and risk disclaimers at ballparks and elsewhere. (& Stephen Bainbridge).
To the extent America has made progress in recent years in rolling back the extreme litigiousness of earlier years, one main reason has been the courts’ increased willingness to respect the libertarian and classical liberal principle of freedom of contract. Most legal disputes arise between parties with prior dealings, and if they have been left free in those dealings to specify who bears the risks when things go wrong, the result will often be to cut off the need for expensive and open-ended litigation afterward.
More on the Delaware bylaw controversy: D & O Diary (scroll), Andrew Trask on state of the merger class action, WSJ Law Blog first and second, Daniel Fisher, and ABA Journal in June, Alison Frankel/Reuters (forum selection bylaws).
Still pretty much the Litigation Lobby’s number one target, and still worth defending with appropriate vigor. [Andrew Pincus, American Lawyer]
- Tips for those facing vexatious-litigant proceedings [Lowering the Bar; U.K.]
- Credit card arbitration: “Plaintiffs’ lawyers protect their cartel by bringing antitrust suit” [Ted Frank, PoL]
- Just what European business needs: gender quotas for corporate boards [Bader, CEI]
- “Food sovereignty” movement: next, rediscovering freedom of contract? [Alex Beam, Ira Stoll]
- Much-assailed group for state legislators: “ALEC Enjoys A New Wave of Influence and Criticism” [Alan Greenblatt, Governing]
- Symposium on David Bernstein’s Rehabilitating Lochner [Law and Liberty, earlier here and here]
- Because rent control is all about fairness [Damon Root]
What kind of medical liability market would emerge if courts decided to begin upholding freedom of contract? I take up that question — and explain some of my misgivings about efforts to portray today’s medical malpractice sector as somehow a free-market arrangement — at Cato at Liberty (& welcome Elie Mystal/Above the Law, GruntDoc, Ramesh Ponnuru readers).
A new report for the Pioneer Institute by John Biebelhausen (Colorado) and Amy Lischko (Tufts) examines a range of policy options for improving the Massachusetts medical malpractice system, including “less traditional” options such as “contract liability,” a “method for patients to contract directly with doctors or health systems to establish pre-determined rules for compensation in the case of injury due to physician negligence.” [“Innovative Medical Liability Reform: Traditional and Non-Traditional Methods“]
- Sooooo glad to be an American: that’s how Patrick at Popehat feels following latest Canadian-libel-law outrage directed at conservative blogger Ezra Levant (& see comments for alternate view);
- Obama has pardoned more turkeys than people. Why? [Dan Froomkin, HuffPo]
- “Reforming medical malpractice liability through contract” [Michael F. Cannon, Cato Institute working paper, PDF]
- Memoir of jury foreman in criminal case [Tux Life]
- Not too sharp: Massachusetts school district disavows policy of not letting students bring pencils to school [Slashdot]
- State governors have big plans for liability reform. Maybe even loser-pays? [Carter at PoL, more; Florida, Indiana, Tennessee, Texas]
- Parent who sent buzzworthy demand letter to Kansas City school board is a jazz musician [Wayward Blog, earlier]
- From comic books to violent videogames: “Our puritanical progressives” [George Will]