legal


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Police can take your money or property and keep it, even if no charges are filed. Clarence Thomas is famously taciturn on the bench. But his few words carry a great deal of weight. Though the matter has not yet come before the Supreme Court, Justice Thomas is very much at the center of a federal case with a name that sounds like it ought to have come from a William Gaddis novel: United States v. Seventeen Thousand Nine Hundred Dollars in United States Currency. The case has the potential to help rein in one of the most abused powers enjoyed by American government: asset forfeiture. The case involves a New York couple, Angela Rodriguez and Joyce Copeland, who lost the above-mentioned $17,900 to police in a case in which no charges were ever filed against them. They sued for recovery of their money, and — incredibly — a federal court found that they lacked standing to sue for possession of their own assets.

The D.C. Circuit Court sees things differently and has ruled in favor of allowing Rodriguez and Copeland to at least have their day in court and attempt to reclaim their money. Current asset-forfeiture practice, like much that is wrong with U.S. law enforcement, has its roots in the so-called war on drugs. The practice of seizing assets is ancient: It dates back at least to 17th-century maritime law, under which ships illegally transporting goods would be seized, along with the contraband inside.

Asset forfeiture was used against bootleggers during Prohibition, but it really came into its own in the Reagan era, when the Comprehensive Crime Control Act of 1984 empowered federal and local law-enforcement agencies to take property from drug kingpins for their own use. The sudden, unlikely inventory of exotic cars and yachts possessed by law-enforcement agencies inspired that great cultural document of the 1980s: Miami Vice.

Asset forfeiture creates an obvious conflict of interest for law-enforcement agencies: Because the proceeds go into their budgets, they have a vested interest in maximizing the use of forfeiture in their jurisdictions. You will be less than surprised to learn that this has produced some serious abuses, and the law-enforcement tool intended to be used against centimillionaire cartel bosses inevitably ends up being used to harass — and loot — nobodies in East Funky.

That is the nature of such innovations in government. It is why the city won’t fix your potholes but the revenue-producing red-light camera is never on the fritz for long. (Here’s a prediction: In a fashion similar to that of the weapons in the war on drugs, the tools created for the so-called war on terror are going to present acute problems for Americans in 20 years — far beyond what they already have — as their metastatic spread throughout government continues.)

The spreading use of forfeiture has of course drawn resistance amid concerns about due process and outright abuse. The Supreme Court declined to hear a high-profile forfeiture case, Leonard v. Texas, for procedural reasons. But Justice Thomas issued a statement on the case that was both erudite and blistering. It was also very humane: Justice Thomas has a keen interest in the literary details as well as the legal ones. He wrote: This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses.

According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights. In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up.

These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.

The issue, Justice Thomas wrote, is “whether modern civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history.” Because these asset-forfeiture proceedings are civil rather than criminal actions, their targets do not enjoy the ordinary procedural protections that they would if they were charged with crimes, the most important of those being jury trials and the heightened standard of evidence demanded in criminal proceedings. Forfeiture cases in effect allow police to punish people for committing crimes without having to go to the trouble of proving that they have committed those crimes. And the fact that the police get to keep the money does not exactly discourage them.

The fact that the practice is a longstanding one does not mean that it is a constitutional one. The fact that the practice is a longstanding one does not mean that it is a constitutional one. We are not seizing the unflagged vessels of smugglers at colonial ports; and even if we were, it is not clear, as Justice Thomas notes, that those seizures were permitted to advance as purely civil matters unconnected to any underlying criminal charge. Due process does not have a great many friends just now: Congressional Democrats have made a campaign out of revoking the civil rights of Americans put on secret government terrorism watch lists, even if those people have never been charged with, much less convicted of, any actual crime.

These episodes are a constant reminder that what conservatives intend to conserve, and what progressives intend to progress away from, is Anglo-American liberalism, with its individual rights, procedural justice, and rule of law. Leonard wasn’t the case that will be used to sort out forfeiture, but Justice Thomas’s Leonard statement was repeatedly cited in the ruling for the plaintiffs in United States v. Seventeen Thousand Nine Hundred Dollars in United States Currency. Justice Thomas may not say very much on the bench, but he has made it clear that when forfeiture finally does come before the nation’s highest court, at least one gimlet-eyed justice is going to be skeptical.

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Fortunately for workers, businesses, and the economy, employment relationships are positive-sum: the value of the goods and services produced together is greater than the cost. However, to make work rewarding for firm and worker alike—to make markets truly competitive—requires at a minimum that the rules governing the employment relationship be fair and clear. Unfortunately, our labor markets sometimes fall short of this ideal.

Recently, there has been much discussion of worker bargaining power and the ways that some firms try to suppress it, thereby holding down wages. This should be a concern even for those who are not typically inclined to see workers as needing protection. In an effort to protect themselves from open competition, some firms are happy to use government power to their own advantage, but to the detriment of society overall. In a previous article, I discussed concerns regarding non-compete agreements, which can have exactly this effect by preventing workers from taking jobs at competing employers. Moreover, to the extent that firms are successful in reducing worker bargaining power, it may be the taxpayer who is called upon to make up the difference for low-wage workers.

Non-competes are far from the only legal tool subject to abuse. Another potentially problematic labor market institution is the so-called pre-dispute arbitration agreement. Under the Federal Arbitration Act, firms may require as a condition of employment that workers surrender their right to pursue grievances within the court system, instead submitting to binding arbitration.

To be sure, binding arbitration has a number of benefits. For the employer, arbitration promises a private forum for what could otherwise be an embarrassing public spectacle. There may also be benefits for society as a whole, given that speedy, inexpensive resolution of disputes is valuable to everyone. More speculatively, making it harder to legally fire workers has been linked with declining dynamism in the labor market, and binding arbitration could mitigate this problem.

But for workers, there are also some serious downsides. Arbitrators can be less sympathetic than a jury, for one thing. To the extent that arbitrators are chosen by the employer, there are obvious concerns: an arbitrator who tends to rule in favor of employers may be more likely to get repeat business. It is useful to contrast this with the situation that often exists in a collective bargaining context, where unions and employers jointly choose both arbitrators and the terms of arbitration.

Finally, new hires are being asked to sign away their rights well before any dispute actually arises, and before they have an incentive to familiarize themselves with the terms of the mandatory arbitration agreement. As with non-compete agreements, it is likely that workers are ill-informed about both what they have signed up for and the extent to which it is even enforceable.

That enforceability is now under some close scrutiny. Earlier this year, the Supreme Court announced that it will rule on whether employment-related pre-dispute agreements can preclude worker participation in class-action lawsuits. Legislation has been recently introduced that would invalidate pre-disputeagreements in employment-related matters, while still allowing for workers and firms to agree to binding arbitration after a dispute has arisen.

As policy evolves—and with so many unresolved questions about the costs and benefits of pre-dispute employment arbitration—it is striking how little data there is to inform the debate. We do not have a clear sense of how widespread the agreements are, what their detailed provisions are, or how often they are enforced. Without this information, it will be difficult for policymakers to make sound decisions that benefit workers and the economy. Efforts should begin now to develop more reliable, comprehensive data about pre-dispute employment agreements, non-competes, and other labor market institutions that determine workers’ fates.

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Ask anyone who’s heard of Dan White — and there are fewer and fewer people who have — how it was that the clean-cut, conservative San Francisco supervisor received such a light sentence in the shooting deaths of progressive San Francisco Mayor George Moscone and gay Supervisor Harvey Milk 25 years ago, and it brings an automatic response: the “Twinkie defense.” The impressionable jury, they’ll say, swallowed the defense contention that Dan White gobbled Twinkies, which blasted sugar through his arteries and drove him into a murderous frenzy. About as simple as: “Eat a Twinkie, commit a murder.”

As Thursday’s 25th anniversary of the killings approaches, what survives is a shared understanding of the gross miscarriage of justice: that an angry young man many thought should have received the death penalty instead was convicted of voluntary manslaughter and got a meager sentenceof less than eight years (with time off for good behavior, he would end up serving only five years, one month and nine days).

The “Twinkie defense” is so ingrained in our culture that it appears in law dictionaries, in sociology textbooks, in college exams and in more than 2, 800 references on Google. Only a few of them call it what it is: a myth.

“I don’t think Twinkies were ever mentioned in testimony,” said chief defense attorney Douglas Schmidt, who recalls “HoHos and Ding Dongs,” but no Twinkies. In fact, the cream-filled confections were mentioned, but only in passing. Junk food was an insignificant part of the defense. The matter was raised briefly in testimony by Marin psychiatrist Martin Blinder, one of five defense therapists. Today, the entire episode is characterized by Schmidt as “a throwaway witness . . . with a throwaway line.”

The main focus of the defense’s case in May 1979 was diminished capacity — that White had suffered from periodic bouts of depression, amounting to “a major mental illness.” That, along with “the machinations of dirty politics at City Hall,” White’s co-counsel Stephen Scherr said in a recent interview, “drove him ’round the bend.”

During his day on the stand, Blinder, a former mayor of San Anselmo and a onetime teacher at UCSF’s medical school and at Hastings College of the Law, characterized White as his family’s black sheep, a man with rigid values and locked-up emotions. In a recent interview, Blinder said his intent was to explore, “What is it that makes a good man kill?”

In his daylong accounting of how White’s life “unraveled,” one small aspect of something Blinder said — “two minutes of a greater part of the day on the stand” — was later turned into the irrational explanation for everything that came after. “Studies show,” he said recently, “that if you have a general predisposition to bipolar mood swings, things you ingest can play a part.” In the days leading up to the killings, the psychiatrist told the jury, White cast aside his normal habits and grew slovenly, quit working, shunned his wife, grew a stubble beard and rather than eat his healthful diet, indulged in Twinkies and Coke — all symptoms, Blinder testified, of depression. The junk food, he said, only made White more depressed, which caused him to binge even more.

Today, a still-angry Blinder says, “It’s preposterous to think that 12 middle class homeowner jurors would give a killer even a partial pass on the basis of what he ate the night before.” He blames the press for perpetuating the myth. “If I found a cure for cancer,” he said, “they’d still say I was the guy who invented ‘The Twinkie defense.’ ”

“It drives me crazy,” said co-counsel Scherr, who suspects the simplistic explanation provides cover for those who want to minimize and trivialize what happened. If he ever strangles one of the people who says “Twinkie Defense” to him, Scherr said, it won’t be because he’s just eaten a Twinkie.

A 1979 San Francisco Examiner story on the anatomy of the White defense, written by Jim Wood, my late husband, cited the makeup of the conservative, mostly female jury, many with children the age of defendant (there were no gays and no African Americans). Wood pointed out that the defense had not challenged the facts, but had put on a psychiatric defense for the former cop and firefighter. White, the defense claimed, had acted in the heat of passion, not out of malice. In his depressive state, he had “snapped.” Not once in the lengthy piece did Wood say anything about a sugar rush, and Wood, who went on to become the wine and food editor of the Examiner, cared about food.

In his 24-page closing argument, defense attorney Schmidt acknowledged that White was “guilty.”

“The only issue,” he told jurors “is the degree of responsibility.” His client “was a good man, a man with a fine background,” Schmidt declared, but “there was something wrong with that man.” Schmidt said psychiatrists had found that White was incapable of “deliberation” — one of the requirements for a first degree murder conviction. He claimed that White had suffered from “diminished capacity” and in that state had acted in “the heat of passion . . .

which fogs judgment.”

In two lukewarm paragraphs, Schmidt let the jury nibble on the snack food explanation: “Whether or not ingestion of food stuffs with preservatives and sugar in high content causes you to alter your personality somehow, or causes you to act in an aggressive manner, I don’t know. I’m not going to suggest to you for a minute that that occurs. But there is a minority opinion in psychiatric fields that there is some connection . . .”

“It wasn’t a big deal, not in the overall context of depression,” recalled former Chronicle reporter Duffy Jennings, who covered the trial for this newspaper.

But over time, the media found it convenient to adopt a snappy nickname. “It’s not as sexy to call it a depression case,” Jennings said.

During the trial, no one but well-known satirist Paul Krassner — who may have coined the phrase “Twinkie defense” — played up that angle. His trial stories appeared in the San Francisco Bay Guardian. Since then, Krassner went on to publish another piece in The Nation and more recently to write a book, “Sex, Drugs & The Twinkie Murders.”

In a thoughtful essay about San Francisco’s “wild, manic depressive swings,” and “its not very well-hidden undercurrents,” the day after the verdict, Chronicle columnist Herb Caen remarked about the police support for Dan White and their “dislike (understatement) of homosexuals.” In an offhand remark, he added that one attorney was calling it “the Twinkie insanity defense.”

Several weeks later, Newsweek spread the term. And by September, barely four months later, outrage had spilled over into the Legislature. There, politicians debated the diminished-capacity defense, eventually abolishing it, in large part because of the White trial. In the course of the debate, conservative Democrat Alister McAlister, anxious to make his point, waved a Twinkie in the air. Within two years, the phrase had slipped into popular lingo. Newspapers across the country, including The Chronicle, were tossing around the “Twinkie defense” as if it were synonymous with diminished capacity.

The true story was far more disturbing.

Back in those tumultuous days, when politics was almost a pugilistic sport, the progressive and puckish Harvey Milk became the first openly gay San Francisco supervisor (and possibly the first openly gay elected official in the nation). Extreme right-wingers felt Milk and other gays threatened their American way of life. Milk told me, as he no doubt told other reporters, he had received so many death threats that he expected to be assassinated. But surely, he didn’t expect the bullet to come from a colleague.

To Milk’s far right on the board stood a crisp all-American-boy, Supervisor Dan White, whose conservative views reflected his Excelsior neighborhood. About a year after his election to the board, the 32-year-old White suddenly resigned. With a pregnant wife, he no longer could afford to earn only $9,600 annually.

Moscone publicly stated that if White changed his mind, he could have his job back. Five days later, after appeals from firefighters, police and neighborhood residents, White did want it back. But by then, liberal supervisors, led by Milk, had persuaded the mayor to appoint a liberal to the open seat. Believing he had been betrayed, White loaded his .38 revolver on the morning of Nov. 27, 1978, stuffed his pockets with bullets and headed for City Hall. To avoid the metal detectors, he climbed in through a basement window and scurried to the mayor’s office. Moscone was shot in the chest and head at close range. White reloaded his gun then fled into the supervisors’ chambers, where he killed Milk.

The debate still rages over how White could have been found guilty of only two counts of voluntary manslaughter when it seemed clear he had committed premeditated murder. He’d shown up at City Hall with a loaded revolver determined to meet with the mayor and, after killing him, reloaded before going to kill Milk. As former newspaperman Jennings said, “It seemed like a slam dunk.”

But faced with a death penalty case, prospective jurors were asked if they supported capital punishment, a requirement that former DA Joseph Freitas,

Jr., says made them more conservative than the natural pool of San Francisco jurors. That, he said, was the first step toward a “miscarriage of justice” in the case.

These “everyday working people,” Jennings said, “didn’t care much for liberal politicians.” When the jury listened to Dan White’s confession, some of them wept.

“A lot of people share this view that the trial was lost in the jury selection,” said Moscone’s former press secretary and family friend, Corey Busch. But Busch argues there was more to it than that. He’s still angered by what he calls the defense’s “very cynical approach.” Although he was not in the courtroom, Busch contends the defense portrayed White as a victim of the city’s cultural and political change. The diminished capacity argument, he believes, was no more than “a hook the jury was able to hang its hat on.”

“If White had just murdered the mayor, I think the outcome of the trial would have been very different,” he said. But with a conservative jury, which Busch considered homophobic, jurors felt more comfortable finding White guilty of a lesser crime.

Darlene Benton, who was on that jury, takes umbrage at that. “People think it was about Twinkies and gays,” she said. “It wasn’t. I was born and raised in San Francisco. I’ve never been against gay people. There may have been a couple of jurors who were,” she said, “but they never told us they felt that way.”

“There was no question that Dan White was guilty,” the now-57-year-old insurance agent said, but “the prosecution thought it was such a clear-cut case they didn’t do their job.” Yes, she said, White carried a gun into City Hall, but then witnesses testified so did then-Mayor Dianne Feinstein. Sure, White climbed through a window, rather than submit to the metal detectors, but,

Benton said, others climbed through that window as well. White reloaded his gun after shooting the mayor to death, but that, she said, is something police officers and former cops do automatically. And Twinkies, she said, played no part.

For days, jurors examined the evidence and the defense’s contention that White suffered from diminished capacity and depression. On a blackboard, they scribbled pros and cons of premeditation. The discussion grew so heated, and the yelling so loud, that at one point, they were escorted to the roof of the Hall of Justice to cool off. The jury was especially hung up over the killing of Milk because White had reloaded his revolver just beforehand. It was not until the final day of deliberation that jurors, mindful that they had to take into account “reasonable doubt,” agreed to the lesser charge.

Busch was at the home of the slain mayor when the verdict came in. “I don’t know how to describe the feeling of such a lack of justice,” he said. “The family accepted it for what it was. But there was a lot of pain.”

The gay community’s agony spewed out onto the streets of San Francisco. During what came to be called the White Night riot, protestors set fire to police cars and stormed City Hall. The violence was in marked contrast to the day Moscone and Milk died. Then, a candlelight march flowed quietly and peacefully from the Castro district to City Hall.

Yet, all that many people remember about the case that still engenders such anger and passion is that jurors succumbed to the defense claim that a politician ate Twinkies and then executed the mayor and a fellow supervisor.

“America loves labels,” said Dr. Alan Dundes, UC Berkeley professor of anthropology and folklore. He compares our belief in the “Twinkie defense” to the conviction that George Washington cut down the cherry tree. He didn’t. Folklore trumps history.

“I don’t care if the ‘Twinkie defense’ has any validity or not,” he said. “People think it was a factor. And thinking makes it so.”

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As Americans were spending time scrambling to give the IRS their annual protection fee, the court system in the United Kingdom, at the behest of National Health Service bureaucrats, abducted and murdered an 8-month-old baby. This brazen abduction was done in broad daylight with full press coverage and the UK government and courts claimed loudly this was humane and the right thing to do.

This might sound like a severe bout of hyperbole, but that is exactly what happened. On April 11, 2017, the courts in the UK ruled that Charlie Gard, against the wishes of his parents, must be immediately removed from life support and left to die. Unlike cases in the US where it is usually the family that is arguing for or against extending hope that their loved ones can be rescued, the only people arguing against continued efforts were government officials and some third party public onlookers. What makes the Charlie Gard case so disturbing is that this is a case where no family member made any argument to remove the child from life support. The government simply overruled them and took their child. As an 8 month old, Charlie was in no position to formulate a living will or even have discussions with relatives as to how he wished to be treated with a potentially fatal illness.

Charlie was born with a rare genetic condition called mitochondrial depletion syndrome rrm2b. This genetic disorder comes with a host of issues ranging from muscle deterioration, seizures and, in Charlie’s case, left him blind and deaf. The life expectancy of this disease is between 3 months and 12 years from the onset of symptoms. There are no current proven treatments beyond clinical studies.

This certainly seems like a difficult disorder to live and deal with. However, this is up to the individual to decide how to handle the onset of a disorder, or in the case of an infant, the parents. In the case of mitochondrial depletion syndrome, the treatment is risky but could lead to the child being able to experience some life, interact with family and live a number of years. The NHS, predictably, denied treatment stating it is too risky. The £1.2 million cost of treatment ($1.5 million as of this writing) was certainly a factor in this decision, indicating that the know-how and necessary medication is not readily available.

In most cases of government run medical care, with such costs, the decision is final. Care is denied and you are sent on your way. In the case of wealthy individuals, medical tourism is always an option. Approximately 800,000 people every year fly to the United States and another 600,000 to Singapore to take advantage of cutting edge and high quality medical treatment that is not available anywhere else. But with the case of Charlie, the £1.2 million price tag would have been out of reach for a regular family. We would have had another footnote for Statists to prove how the poor get trampled under the foot of the rich and we would then go about our day.

Except a major feature of the free market, private charity, kicked in wonderfully. Within a month of denial and discovery of the treatment, Charlie’s parents managed to raise the entire amount to pay for the treatment and trip to the United States. In a normal world, this would have been the end of the story. Charlie would have gone to the United States, received his treatment and we would have discovered if his already dire situation could have been mitigated or treatment failed.

But the NHS decided, for whatever reason, to interfere with this process. When Charlie’s parents attempted to withdraw him for this treatment, Great Ormond Street, a children’s hospital in Greater London run by the NHS, rushed to the British High Court to block his parents from doing so. As government court systems are wont to do, they sided with themselves and denied the parents’ wishes for further private treatment and gave an official court order that Charlie is to be removed from life support and left to die. This was a no-lose situation for Charlie and his family. If the treatment fails, the end result is the same and the parents can at least have closure that they tried everything possible. If the treatment is a success, he can live enough years to be able to learn what his parents look like, interact with them and be able to experience some joy in life. One can wonder, cynically, if the court system ordered his death to avoid risking embarrassing the NHS should the treatment they denied actually work.

Unlike the usual defects of public medical care, where resources are politically allocated leading to critical shortages for perfectly preventable diseases, such as the case of Laura Hiller in Canada, all the while claiming that medical care in a free market would be provided on a cut-throat system that denies the poor care. Charlie’s case shatters this self-proclaimed image. Here we have elements of the free market working as expected but with the government actively, and openly, doing everything it can to interfere with it.

Proponents of expanding this system to the United States, such as Paul Krugman, insist that public medicine doesn’t have death panels. What we are now seeing in the UK, not only does the British Government have death panels, they display those death panels as a public court spectacle for all to see and are also in the business of child abduction and forced euthanasia to enforce the panel’s decisions. No private hospital could ever hope to do the same thing that Great Ormond Street and the British High Court just did.

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Reflecting on last week’s litigation while on the treadmill I came to some conclusions.

The ‘technical’ aspect of litigation is important, but is not actually that hard if you set about it the right way. Essentially you need to know what you need to win and then set about cross-examining the witnesses to get it. Pretty easy once you have done it once or twice. The most important thing is not to appear aggressive or nasty while you are attempting to get what you need. The second thing is to know when you have ‘got enough’ or what you need for your case.

The second aspect is simply one of form, which is easy enough to learn, when to stand sit etc.

The most important and the one that will be hard to ‘learn’ is having the balls to actually litigate in the first place. This one you can learn, but if you don’t have it naturally, then I don’t think you will ever enjoy litigation, although you may become technically competent.

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So yesterday was day 1 of the trial.

Opposing counsel had written opening submissions, which she read. I on the other hand had memorised my opening submissions and presented them orally. The Judge seemed to like that.

My client was the first witness to give evidence. No matter how much you coach them prior to this, something always goes wrong.

Anyway, stuff went wrong when the opposing counsel cross-examined. I had stuff to fix during the re-examination and I was dancing a fine line between legitimate re-examination and re-leading evidence-in-chief. I got away with it, I was challenged twice, but fought off both objections.

That was the tough part of the case for me. Cross examination of the opposing witnesses is always easier.

I’m still trying to finish closing submissions.

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Employment security is a concept that generates legal and economic controversy. This is due to the conflict between the rights of capital to run a business to its maximum profitability and the argument that employees have a right to employment security.

For people living and working in an advanced economy, viz. an economy where there is specilisation within the process of production in goods or services, then employment security ought to depend on access to a market that demands their goods or services.

The law however adds some further stipulations: that employment security can also be taken to include all factors that affect a person’s employment opportunities. These would include factors such as additional protection for limited periods if they choose to leave paid employment to raise children.

The need for employment security was summarised by Judge Perkins, who, was the Judge in my recent case.

“A heavy onus rests upon an employer before a dismissal can be validly effected. The reasons for this are obvious. The right to be in employment and earn the means to support oneself and one’s dependants is a substantial right requiring protection. There is a strong societal imperative behind this, supported by economic need for full employment as founding a strong overall economy. A position of employment is a valuable asset. Employees are the most valuable asset of any business hoping to thrive. If the employment is to be terminated it is essential that it be justifiably fair.”

Clearly the Judge is not an economist.

Employment in production, when analysed as an economic proposition, can be analysed as a series of property rights, which, lends itself to a concurrent legal analysis.

The first right enumerated is ‘the right to be in employment’. This is another way of saying that as an entrepreneur, who supplies the capital, must provide employment.

Clearly this is incorrect. I have a legal right to my property, in this case capital. There is no requirement that I subjugate that right to another who has no legal claim to my property. There can be no ‘right to employment.’

Employees are a valuable asset, but they are no more valuable than other economic inputs, such as raw materials etc. The most valuable asset is capital, without which, there is no business and no employment. Capital pays the wages of the employee.

This is clearly true, as, production takes place over time. Employees are paid before the production results in consumer goods and the capitalist can earn the market return on those consumer goods.

What the law is actually talking about is the right of the employer to discard under-performing employees. Employees who earn less than their ‘discounted marginal value product’. These employees can create losses to capital and quite rationally, the employer wants to discard this underperforming factor of production.

The law does allow this, but requires that the employer evidence this and thereby justify their dismissal. This prevents the employer dismissing employees, not because they are underperforming, but because there is a personality clash and the employer wants to dismiss on this basis.

 

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