Thursday, December 27, 2007

Five MORE Interesting Legal Principles: Part II of a Series




Disclaimer: I hope it is clear that these principles, being both hazily remembered and heavily embellished, are in no way to be taken as legal advice--

1. The Dodgy Guy Washing Your Already-Clean-Windshield-Rule:

Sometimes you can receive payment from people for services even when they haven't requested it. A doctor who stops and performs an emergency trachiatomy with his Swiss army knife to save your life is a good example of this. Although he's probably just going to get the fair market value of the operation, even if he's a world famous and typically charges much more. This is possible because most people assume that an unconscious person, if asked, would indicate his desire to be saved. You can't, however, confer a benefit on someone who, if you asked, wouldn't have wanted the service or requested it. So, you know that kind of dodgy guy who runs up and washes your windshield and then kind of sits there hinting that you owe him something?* Of course, we all do. Now you can simply roll down your window and explain to him that there is a long-established common law principle that supports the idea that you can't confer a benefit on someone who, if you asked, wouldn't have given permission. So just explain that to him. Seriously, do it. . . see what happens.

*Note-- We actually do owe that guy something (think health care). It's just not the kind of something that should come after intimidation tactics at a routine traffic stop.

2. The Gene Hackman/Mary Elizabeth Mastrantonio/Richard Posner/Judge Learned Hand Class Action Rule of Economic Analysis of Negligence:

If the burden of precautions (B) is less than the gravity of the injury (L) times the probability of the injury (P), then economically speaking, then you have no incentive to implement the precautions to avoid the accident. Let's say that, like in Class Action, Ford Motor Co. decides that changing a certain valve on one of its cars costs $100 per car. If they don't change it, they are sure to have at least 5 accidents. The accidents will certainly result in the deaths of those injured. If the average award in litigation for automotive negligence that leads to death is $5,ooo,ooo that's a $25,ooo,ooo cost to them. But, if they make the valve changes, say they put out 500,000 cars, they're going to be paying $50,000,000. In that case, they might as well let the cars go out and pay the negligence damages in court.

With one caveat. When the accidents do occur, the company will claim that they don't have to pay the damages because they weren't negligent. Why? Because the B was less than the P x L, which means that the company wasn't negligent? Do you see the cyclical argument there? You should. This is essentially what happened in Class Action.

3. The I'm-An-Asshole-Principle of No Duty To Rescue:

Let's pretend you are drowning in a river and I come across the bridge. There is a rope that I could throw to you and easily rescue you. You say "Please save me kind stranger." I say, "Make me. Free country." Why don't I just save you? I don't have to. There are several states that have passed statutes contrary to this rule, but the vast majority of states give us the right to choose not to help our fellow man. Oh, and be a world-class asshole.

4. The Don't-Incapacitate-or-Harass-Bill Gates-Rule:

Say I'm Bill Gates' boss at Microsoft. Humor for me and pretend that such a position exists. I begin to come-on to him, touching his inner thigh while he speaks at press conferences, whispering bitter somethings in his ear during lunch break. After being subjected to this sexual harassment, he quits. If Bill Gates can't get a job anywhere else in the industry because people are sick of his aggressive strategies to protect Microsoft's master code and freeze out his competition, he takes a job that he loves as a park ranger. (I honestly think that deep down most of us want to be park rangers). There's a good chance I'll be compensating him for "front pay" for a large number of years. Front pay is the difference he would have earned at Microsoft and his current job. Since this figure is approximately infinity, it is presumed that he will never recover the full judgment from anyone but himself.

5. The Supreme Court Exception in New York:

This isn't really a rule but I thought I'd include it anyway. In nearly all the states, the Supreme Court is the highest court in the system. New York is a notable exception; its highest court is the Court of Appeals. You will hear this fact no less than 50 times during the first week of law school.

No comments: