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June 09, 2004


Legal mischief and the end of merit

Ted Frank has posted on overlawyered the sordid tale of yet another "valedictorian suit." The case seems silly, and it will likely be dismissed. But that dismissal is far from harmless. Sadly, the lawsuit has the school district "considering whether to follow the lead of other [school] districts and drop the valedictorian ritual in favor of a system that recognizes a wider array of talent."

Defenders of the status quo tort system like to assert that proponents of legal reform focus on anecdotes that are either thrown out of court before trial or beaten down on appeal. As this case illustrates, however, that criticism ignores that the sheer cost and hassle of litigation itself can discourage any activity perceived as a litigation risk, no matter how important or benign.

Here, the "risky" activity potentially eschewed is the valedictorian designation. There is no principled reason, however, why class rankings themselves are not subject to the same scare tactics. Indeed, the logical consequence of a school's not making fine distinctions in class ranking based on grades is a school's inability to distinguish superior performance at all -- a result not as unlikely as it may sound in a world in which negative job reviews have all but disappeared.

The suit in this case, in the plaintiff's own words, is "more about [her] personal feelings" -- unsurprisingly, since it would seem fanciful that she could claim that her not being named valedictorian, a designation that follows collegiate admission and scholarship decisions, caused her any actual damages. Indeed, she was admitted to her first-choice schools and "walked off the stage at graduation Thursday with an armful of medals, certificates and scholarships." I happen to be remain very good friends with the salutatorian at my high school, and in her investment banking career she has earned substantially more money than the class valedictorian has in his days as a student and an employee of a nonprofit think tank...

Without a loser pays system in America, suits filed for their harrassment value alone -- on the basis of mere hurt feelings -- can exist, although plaintiffs (or their attorneys) must at least pony up some up-front funds. Because defendants in our system are not reimbursed for the time and expense incurred in going to trial, they lose even when they win and are thus often willing to settle. And to avoid the hassle and cost of prospective suits, they will modify their behaviors -- often in ways hurtful, rather than helpful, to the public good.

Were America to follow the rest of the world and force the losing side in a lawsuit to pay the winner's expenses, the salutatorian would at least have to pay the defendant for her personal vindication; and the school board would be more likely to fight her claim and maintain a system of rewarding students on the basis of performance.

Posted by James R. Copland at 04:05 PM | TrackBack (0)



categories:
Loser Pays
Regulation Through Litigation









 

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.