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So what about "Hickory Dickory Dock"?

Via Overlawyered, I see that one of those ridiculous lawsuits we always read about has been resolved. In this one, Southwest Airlines was sued last year because a flight attendant had used the phrase "Eenie meenie minie moe," and two black passengers claimed that they suffered emotional distress as a result. The jury found for the airline.

Of course, defenders of the current tort system will cite this case as an example of the system working: it was a bogus case, so when the case went to trial, the defense won. Just what we want to happen.

Except, of course, that the case went to trial. That's tens of thousands of dollars the airline had to spend, just to prove that a nonsense nursery rhyme wasn't maliciously used to injure the passengers. And it wasn't just the airline that had to expend resources:

[The trial] began on Tuesday before an eight-member jury.

The jury returned its verdict in favor of the airline Wednesday evening.

So even the correct outcome for this frivolous trial cost eight people two days of their lives.

Keep in mind what the basis of this lawsuit was: it wasn't that the flight attendant had used racial slurs. In fact, the flight attendant never mentioned race at all. Rather, the flight attendant's innocent, non-racial comments offended some people because they thought it might have some tenuous connection to a race-based reference from decades earlier. And that was enough to trigger a lawsuit and a trial.

Unfortunately, when the courts in the mid-1980s decided to expand the "hostile work environment" theory of discrimination, they opened the door to lawsuits where mere offense -- a vague and highly subjective standard -- can create liability. Fortunately the jury made the right decision here, but given that the "hostile environment" theory has now moved beyond the workplace to the public accommodations venue, nobody can feel free to speak -- even in innocuous children's rhymes -- without fear of incurring tens of thousands of dollars in costs if a member of some racial minority is having a bad day.

Incidentally, according to this expanded version of the story, the two women who were plaintiffs still don't get it:

Fuller said after the verdict that there was enough evidence for jurors to have found she had her sister had been discriminated against.

"If we had jurors of our peers then we would have won the case today, and we should have won the case today, with all the evidence shown," she said.

"It's a shame that the jury pool we had to draw from did not have one black and not one minority," she said. "Something has to be done to make sure there is justice in America for blacks."

In 1963, firehoses and dogs were turned on blacks who wanted to vote. In 2003, people get offended at nursery rhymes and claim to feel a sense of injustice. Who says we haven't made progress?


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