Product liability law offers the clearest contemporary example of how the growth in litigation and the ability of the complaining individual to recover damages at tile expense of free market efficiency and choice. The raw statistics and clear evidence of market consequences are numerous, making this field of law an excellent starting-off point in any study ofthe imbalance currently gripping our legal system. However, tile limitation on the ability of the employer to make economic choices is not limited to the question of what products to manufacture and sell.

Employer decision-making authority has been limited just as severely within the employer's place of work. The ability of the employer to make choices about the operation of his workplace, in terms of whom to hire, whom to discipline or promote, and how to organize the workplace, has also been severely narrowed by the legal system's shift in favor of the complaining individual. Little statistical research has been done in the area of employment rights litigation, but the impact of litigation on this area of market decision-making can be easily surmised by studying the case law expanding individual suit rights.

This study will investigate the impact of litigation growth on employment-setting rights by focusing specifically on one state. The state we will examine is Michigan, one of the great American industrial states that has slipped into economic decline with the advent of the "rust belt". Michigan has one of the nation's highest percentages of union membership, wages, and costs of doing business and is consistently ranked low by businesses as a place to expand or locate. [36] A significant factor in the general distrust of the business environment is attributable to the Michigan legal environment, which exhibits as strongly as that of any state the judicial favoring of the complaining individual at the expense of employer discretion.

The statutory context for Michigan's judicial decision-making climate is noteworthy. Michigan's compiled laws are filled with employer restrictions and prohibitions. The employment law area finds numerous taws binding the hands of the employer, including a discrimination law which has additional protected categories beyond those provided by federal law (such as marital status, weight and height), a strict affirmative action handicapper discrimination act, a state payment of wages prescription, an act providing complete employee access to his files, a polygraph protection act, a whistleblowers' protection act, as well as very generous and costly workers' compensation and unemployment compensation entitlements, to name just some of these laws. [37] These statutes create a fabric of litigation entitlement for the employee which far exceeds that provided by most states.

The existence of these statutes is of course not the focus of this study (although it would make an interesting companion study, especially in the context of current political pressures to mandate employee benefits in many new areas such as parental leave, child care, and medical insurance). The existence of these statutes is nevertheless important, since it provides one of the avenues in the which the court has the opportunity to expand individual rights and compensation. Many of these statutes are enforced through litigation, and it is only in the interpretation of the statutes that they come to have much significance. As a portion of the following discussion will reveal, the Michigan judiciary has taken the existence of statutes providing individual rights in the employment setting as a key opportunity for advancing the shift away from employer discretion.

Employment rights case law in Michigan reveals a fairly consistent orientation, systematically applied, toward the establishment of individual remedies against employer decisions. Both in the expansion of common law rights and in the interpretation of the scope of employment statutes, the Michigan courts have provided a full plate of employee remedies. As a result, the fundamental rights of the employer to chose with whom to work and under what conditions have become significantly limited, to the point where some employers would claim that the workplace is no longer their own.

The question here is identical to the one posed earlier as to employer rights to make market decisions with regard to their products. Has the expansion of the employee's right to sue and recover from his employer gone too far, so as to impose too severe a limit on the ability of the free market to function effectively? In an effort to answer this question, we will look at some of the specific examples of the shift in employment rights, and then conclude with suggestions on how a more equitable, free-market-favorable balance between employee and employer rights within tile litigation setting might be achieved.