- 74 -
as well as future income and benefits were taken into account in
computing his settlement recovery, Mr. Kenseth’s claim had its
origin in the rights inhering in a constitutionally or
statutorily protected status (e.g., age, sex, race, disability)
rather than a free bargain for services under an ongoing
employment relationship or personal service contract. Such
rights are no less alienable than other types of property rights
that may be bought and sold and otherwise compromised by payments
of money.47 Indeed, where a claim based on status, such as an
ADEA claim, is the subject of a contingent fee agreement, the
amount paid the attorney as a result of his successful
prosecution of the claim is much more personal service income of
the attorney than personal service income of the claimant,
however the claimant’s share of the income might be characterized
for tax purposes. Again, quoting Bittker & Lokken, supra at 75-
13, in a slightly different context: “If a metaphor is needed,
one could say that the pooled income is the fruit of a single
grafted tree, owned jointly by the parties to the agreement.”48
47 Perhaps, contrary to Maine, Ancient Law 100 (Everyman ed.
1931), more recent developments, which, in “progressive societies
has hitherto been a movement from Status to Contract,” have
shifted back to a greater emphasis on status as a source of
personal and property rights.
48 See discussions infra at 80-81 of the “two keys” simile
and at 90-97 of the cropsharing analogy.
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