Go to Making Light's front page.
Forward to next post: Identifying phish
Subscribe (via RSS) to this post's comment thread. (What does this mean? Here's a quick introduction.)
1. The flowchart:
I first ran into the organization Common Good when Looking for the Next Best Thing linked to a page of theirs, an impressively complicated flowchart that supposedly shows what it takes to suspend a disruptive student in the NYC school system. The chart’s a striking piece of work, but as I read through it, I became uneasy.
I’ve been a bureaucrat. I believe I have some sense of the logic behind the apparent complication of bureaucratic processes, especially in areas like education, where you get multiple overlapping and interacting agencies, authorities, programs, interests, priorities, and rule sets. It’s a necessary complexity, but it lends itself to parody. If you want to take a description of a bureaucratic process and puff it up like a microwaved marshmallow, all you have to do is specify all its possible inputs and contingencies, plus all its optional appeals processes (there are always appeals processes) unto their last detailed kink and wrinkle. It will come out looking impossibly convoluted.
This is in fact what the anonymous author of that flowchart has done with the NYC school system’s suspension process, in order to create the impression that it’s hugely elaborate. He’s cheated along the way; for instance, by separately breaking out the subsections of some regulation (say, the list of information that must be included in the notice of suspension sent to the parents) as though each stipulated databit were a separate step in the process. He’s also given the chart an arbitrarily long, narrow format, which further obscures the actual structure of the process, and makes it look even more endless and convoluted. That’s a misrepresentation, but it’s by no means the only one present.
The flowchart starts by planting the idea of classroom disruption, and the presumed need to get rid of the students who’re causing it. This is not a working model. There are always a few students who are “so disruptive as to prevent the orderly operation of the school,” or whose behavior “represents a clear and present danger to the student, other students, or school personnel,” and you do have to be able to take them out of a setting that can’t accommodate them. However, students that meet that description are not the primary source of classroom disruption, and there sure as heck aren’t one or two of them per class. It’s like bad drivers: a small number of them are so impenitently dangerous that they should be prosecuted as felons, if only to get them off the roads; but they’re hardly the main source of unsafe driving.
Here’s the missing part of the flowchart’s model: Suspending a student is a nontrivially consequential action. The students most likely to get suspended are also likely to have fragile and uncertain school careers. The loss of daily continuity and classroom instruction time can break them. So can the trouble they get into while idle. If you suspend them, they may flunk out, or stop coming, or tangle with the law. At that point, everything suddenly gets much harder for everyone concerned—except, perhaps, for the school that did the suspending.
It’s much easier to dispense education if you’re free to get rid of the problem cases, and anything troublesome can be classified as “disruptive”. Trouble is, the kids you boot out don’t just vanish into thin air. They have to go somewhere and do something. Whatever it is, they’d almost certainly be better off going to school. A good suspension policy doesn’t make it too easy for schools to offload their problems onto someone else’s shoulders.
Aside #1: If you’ve hitherto had a lilywhite WASP school, black students are a disruption. So are ESL students, Muslims, unassimilated Hmong, and observant Jews. It’s not a question of disruption/nondisruption. It’s where we decide to draw the line.
Aside #2: Some of the complications in that flowchart are generated by requirements that parents be brought into the process, fully informed of what’s going on at various stages, and given a say in it. Since I can think of no other circumstance in which parental involvement in education is considered to be a bad thing, I’m not going to accept that it’s bad here, either.
The chart also gets a lot of play out of the separate-but-overlapping rules that kick in if a student is disabled or a Special Ed case. It drops in the questionable datum that about 1 in 10 students is considered “disabled,” which has got to be some kind of misprision. I doubt you can come up with a 10% disability rate in NYC unless you’re counting every child whose home language isn’t solely English—and that’s not enough to get you cosseted. Meanwhile, there’s good reason to have separate rules for children with special needs.
One of the big changes in the U.S. school system over the last few decades has been the mainstreaming of students who have special needs. If they can go to regular schools, they do, and they (supposedly) get the additional help they need to do so. This can be very expensive for their districts, and inevitably brings some disruption to their classrooms, but that was assumed from the start. It can be stressful. But if mainstreaming is going to work, disciplinary assessments have to take special needs into account.
2. Who are these guys, anyway?
So, what’s this flowchart actually about? Not law and education. Not really. I doubt that many readers read much past the first screen’s worth of it, and I don’t think they’re meant to. That first screen sets up the false model of the principal who can identify the one or two children per class who must be suspended in order to maintain any classroom discipline. It also introduces the issue of separate rules for children with special needs, and drops in that strange bit about a 10% disability rate, which undermines the perceived validity of all the protective regulations.
The real payoff is that next to the main flowchart there’s an image of the chart in miniature, a thumbnail version, which even at that size is two or three screens long. The interaction goes like this: You arrive at the page and start reading the main flowchart. You get through about a screen’s worth of it, and then your eyes glaze over. You switch over to the thumbnail version, click down to see where the thumbnail ends, and find there’s an entire second screen’s worth of it with no end in sight.
At that point, the message that’s delivered is that there are unnaturally and unnecessarily complicated legal requirements attached to what should be a simple, straightforward disciplinary option. It’s a lie. But that flowchart is a very elaborately constructed lie—a professional piece of work. It made me want to find out why someone went to all the trouble to put it together. I clicked through to the site’s home page.
Thus did I meet Common Good. Its website claims it’s about “restoring common sense to American law,” and pretends that Common Good is a grassroots organization. I didn’t quite buy it. There was something too slick and simple about the site. It smelled wrong. An organization of real human beings who are trying to address genuinely complex issues ought not generate a webpage as smooth and featureless as a bowlful of Maalox.
I looked further. It didn’t take long, and Common Good was at the top of the list. From the ConsumerWatchDog.org site, 29 May 2003:
Consumer Group & Author Reveal Corporation’s Invisible Hand Behind Attack On Individual’s Legal RightsThat is, Common Good is a corporate-funded organization whose entire purpose is deception and the spread of disinformation.Santa Monica, CA — The growing attempt to roll back legal rights for individuals in state house across the nation is being surreptitiously coordinated by America’s largest corporations through the use of front groups, a national consumer group and author revealed today. …The “Astroturf” corporate consultants masquerading as independent, grass roots reformers, according to FTCR’s research, include:
* Common Good, described in Monday’s front page New York Times story only as “an advocacy group dedicated to changing what it calls the lawsuit culture,” was founded by corporate defense lawyer Philip K. Howard, the Vice Chairman of Covington & Burling. This leading corporate defense firm represents many of America’s largest corporations, all of whom have a large stake in limiting consumer’s legal rights. The list includes Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., Philip Morris Inc., and R.J. Reynolds Tobacco Co, the American Automobile Association, the Association of American Railroads, the American Petroleum Institute, Eli Lilly, ExxonMobil, Goodyear, Microsoft, Procter & Gamble, Trane, and Union Pacific.
Cute, huh? Large corporations can do stuff like that. They have lots of money. The same kind of resources that can buy them airtime and slick ads for their products can also buy them the entire appearance of whole grassroots groups, organizations, and popular movements.
3. What’s going on here?
In the case of Common Good, the agenda being pursued can be loosely grouped under tort reform, which isn’t a reform movement at all. It’s a massive lobbying and PR campaign surreptitiously financed by business interests. It works to (1.) bring the law into disrepute; (2.) turn public opinion against small plaintiffs by portraying them as greedheads who file groundless or frivolous lawsuits; (3.) spread the idea that American firms are being driven out of business by runaway jury verdicts (which they aren’t)(and by the way, juries tend to make smaller awards than judges do); (4.) likewise spread the idea that American doctors are being ruined by skyrocketing malpractice premiums caused by an epidemic of outlandish malpractice awards (premiums are up, but malpractice awards aren’t, and the greedheads in this instance are actually the insurance companies); and (5.) create a climate of public opinion that will enable them to get laws and regulations permanently changed in their favor.
If you aren’t already familiar with this issue, probably your best single-stop website is CorpReform.com. Consider linking to it. As the site sums things up,
Tort reform isn’t about fixing a “broken” justice system; it’s about protecting the public image and bottom lines of the biggest and most powerful companies in the world. Tort reform isn’t about protecting doctors from high insurance rates; it’s about protecting their insurers from having to pay large judgments. Tort reform isn’t about keeping “greedy lawyers” from filing frivolous lawsuits; it’s about keeping those who are severely injured out of the court system and away from the public eye.
All true, I’m afraid. This has been going on for a while. From a consumer watch website:
On February 27, 2002, the Wall Street Journal reported that the U.S. Chamber of Commerce plans to spend up to $15 million for television ads that highlight the “hidden costs” of allegedly plaintiff-driven product-liability litigation. Thus, U.S. business returns full throttle to an old campaign: tort reform.The message is not new. For the past fifteen years, pro-business interests in America have sought to “reform” the judicial and regulatory systems that govern consumer products and services in America by limiting the remedies of injured citizens. Until now, initiatives targeting legislative change have encountered limited success. Although many legislatures have adopted some tort-reform measures, most states have rejected the more Draconian reforms. In fact, courts in some states have struck down tort reform attempts as unconstitutional.
The tort reform campaign has gained much wider acceptance, however, in the jury box. Many jurors now treat as axiomatic the notion that the nation is plagued with “frivolous” lawsuits and outrageous jury verdicts. The rich and greedy plaintiff’s lawyer has become a part of American folklore. Of course, these stereotypes have not emerged by chance. They have grown out of a calculated attempt by corporate America to portray itself as the helpless victim of an unfair legal system—to cultivate a legal system that favors business interests.
Thus, while the tort reform campaign may not have convinced legislatures and judges, it has resonated with the public at large. Contrary to widespread propaganda, studies have shown that jurors tend to be “generally favorable toward business, skeptical more about the profit motives of individual plaintiffs than of business defendants, and committed to holding down awards.” As a result, plaintiffs prevail in fewer than half of the cases (48%) that juries hear. Moreover, the overall value of the average jury award is generally less than the actual losses suffered by victims. In fact, juries make the largest awards not in tort cases, but in business litigation cases.
The battle here is not about reality, but perception, and business interests have clearly influenced this battle. And there is every indication—from the Chamber of Commerce’s announcement to election promises—that pressure for alleged “reform” of the legal system will only increase. To face these challenges, proponents of equal access to the justice system for all must understand (1) how the “need” for reform was created, (2) the tactics used and (3) the true facts about the role of personal injury cases in the nation’s courts.
THE BEGINNING OF THE “TORT REFORM” CAMPAIGN
Initial industry efforts to shape the tort-reform debate began in the 1980’s and concentrated on the editorial boards of large newspapers and small-town publications. Editorial writers themselves described direct links between industry-sponsored tort reform campaigns and the content of the editorial articles they wrote. In the mid-1980s, for instance, three tobacco firms (Lorillard, Brown & Williamson and Philip Morris) hired the law firm of Arnold and Porter to gather news clippings on “out-of-control” personal injury claims and send them to influential reporters, columnists, editors and TV producers. These clippings inevitably contained biased accounts of lawsuits in which plaintiffs won large verdicts for seemingly small or nonexistent civil wrongs. Public relations campaigns like these, targeted at the press, produced positive results for their industry sponsors. Commentators soon noted that “… the media began to reflect the anguish of business leaders who complained that a ‘tort explosion’ was undermining Corporate America.”
You know all those stories you’ve read about ridiculous court cases where greedy plaintiffs and their greedy lawyers collect huge settlements for minor injuries that were their own fault in the first place? The McDonald’s coffee case is the most famous. I’m sorry to say that those stories are fabrications, part of the PR campaign. Some of them are pure fiction. Others have been cooked up by grossly misrepresenting real court cases. Netizens have spread them far and wide.
4. Seducing Snopes
Don’t take it personally. Even Snopes.com has fallen for them. But then, Snopes would. They grew up out of the old Internet, back when less money was at stake, and they’re dependent on their informants. That means they can be gamed. Besides, these stories are just their cup of tea, with their consistent underlying trope of “common sense” vs. ridiculous laws, ridiculous regulations, ridiculous courts.
Common Good, the site I was looking at when I started this post, is part of the effort to bring the law into disrepute. That ought to offend you. The law belongs to you, and it’s there to protect you. It’s not always perfect; neither are the courts. But it’s there for you. These campaigns to belittle the law are being paid for by people who are manifestly not on your side.
These are corporations which stand to have to pay out large sums to satisfy legitimate individual claims. Note that: legitimate claims, as in “the corporation knew their product was lethally dangerous under circumstances that were bound to occur sooner or later, and consciously decided not to do anything about it.” They put millions of dollars into spreading the idea that juries commonly award ridiculous damages in trivial lawsuits, and that we’ve somehow become a lawsuit-happy society. They’re lying.
Remember, that supposedly huge settlement $2.6 million settlement against McDonald’s wasn’t because they gave Stella Liebeck third-degree coffee burns (though they did, and then refused her offer to settle if they would just pay her medical bills). The punitive damages were because it came out during the trial that in the ten years prior to Stella Liebeck’s accident, over 700 people had been seriously burned by the coffee McDonald’s kept at an unsafe temperature. McDonald’s knew this was happening, but they maintained their coffee at 190 F. anyway, because it keeps longer at that temperature and thus is slightly more profitable. Finally, the amount of the award wasn’t McDonald’s income for two days, nor even McDonald’s income from coffee for two days. It was two days’ profit from selling coffee that their own spokesman characterized as “unsafe for human consumption.” Ten years of serious injuries didn’t get them to turn down the temperature on their coffee pots. Two days’ coffee profits did.
Never doubt that it’s worth their while to lie to you. When you’re talking about really big corporations and really big money, it’s worth their while to lie to you very, very elaborately.
I should mention malpractice awards, which are another branch of the tort reform campaign. These are the stories about how doctors have to “practice defensive medicine” or stop practicing altogether because their malpractice premiums are going through the ceiling due to people getting rich off frivolous malpractice claims. (Do have a look at that link.) While it’s true that malpractice premiums have gone way up, it’s not because malpractice awards have gone up. It’s because insurance companies want to make even more money than they’re already making. With some of them, it’s because they greedily put a lot of money into risky high-yield investments—exactly the sort of thing insurance companies shouldn’t be messing with—and got caught short when the boom ended.
Apparently some clever fellows have figured out that you can make a lot more money if you divest yourself of the claims-paying part of the insurance business.
It’s very much worth their while to lie to you.
A few years back I had an argument with one of my brothers. I said that right-wing disinformation had a whole lot more money and organization behind it than anything the left had to say. He said no, it didn’t. I said yes, actually; it did. He again said no it didn’t, so I saw there was no use in talking about it, at any rate not with him. But it’s true. Corporate America doesn’t just buy airtime and put together slick ads for its products. It also uses its money to generate some of the slickest disinformation on the planet.
We think we’re so clever, we think we can cope, we think we’re on top of the problem. We don’t just take any old advice off the Internet. We think we know where to find the good stuff. We know to think twice before listening to corporate spokesmen. We give extra credence to private netizens who, out of the kindness of their hearts, are giving us the straight dope on something. We’ve done it a hundred times before. We’ve done the same when someone asked a question we could answer, and felt good for being able to help them.
It’s different now. There’s too much money at stake for that frontier to stay open. Deceiving us has become an industrial process.
Ten years of serious injuries didn’t get them to turn down the temperature on their coffee pots. Two days’ coffee profits did.
Never doubt that it’s worth their while to lie to you. When you’re talking about really big corporations and really big money, it’s worth their while to lie to you very, very elaborately.
The profit motive is very powerful. Remember the Ford Pinto: The technology was available to make the Pinto a safer car...Ford alleged that it would cost $11 per car to add any sort of gas tank, fire prevention device. This fact is mentioned earlier in the cost analysis and like the other Ford cost facts, is also false. The fires that occurred in Pintos could have been largely prevented for considerably less than $11 a car...Crash-tests were conducted and there are reports showing that the Goodyear bladder worked very well...The total purchase and installation cost of the bladder would have been $5.08 per car. That $5.08 per car could have saved the lives of several hundred innocent people.
For those who say that large corporations aren't aware of the risks they're incurring, I can tell you, you're wrong. I work in the backoffice of a large investment bank, and while I can't mention specifics information I have seen at work, I can say that banks are very aware of ongoing or potential litigation against their clients (and those clients have been known to hold information from bankers).
It’s different now. There’s too much money at stake for that frontier to stay open. Deceiving us has become an industrial process.
So what is the solution? Setting up an anti-corporate disinformation corporation? Netviduals contributing to a massive online database? (Ack! I can't imagine indexing and maintaining that beast!) I don't have the answer, but if someone comes up with a good one, I'm there
What gets me every time is how facilely these bastards slander juries, and the contempt they've managed to create for them. Who do people think juries are?
I may have told this on a different thread about a year ago but...
My wife and I, about a decade ago, were forced to withdraw our son from the local public elementary school [name withheld to protect the guilty] in the Pasadena Unified School District.
A bully had tackled our son on the asphalt schoolyard, and violently attempted to twist his head off, claiming that he'd seen this maneuver on World Wrestling Federation.
The school refused to suspend, let alone expel the bully, whose first name and last name were an identical misspelling of Dr. Asimov's first name.
The school refused on the grounds that the bully had not used a knife or a gun, nor had drugs on his person. The school said that to take action against the bully would expose them to legal problems.
We pointed out that if we filed charges of Attempted Murder that would not look good either.
They started to sketch a procedural flow-chart.
Within hours, our son was enrolled in a VERY expensive private school. That became the point where my wife and I were both forced to work more than full-time.
Eventually, the bully WAS expelled. The incident was hideous, and accidently fell into the right box of the flow chart.
Love thy neighbor, blah blah blah. We hope that bully ends up in in the Life Sentence flow chart.
The school said that it wasn't fair to take into account that our son had the highest grades in the school, was Captain of their Math Team, while the bully was always failing every class.
Makes one into an elitist, regardless of Liberal sentiments.
Teresa: I first ran the organization Common Good
I'm sure you'll want to add the missing word there. :)
The school said that it wasn't fair to take into account that our son had the highest grades in the school, was Captain of their Math Team, while the bully was always failing every class.
JVP, while I'm sorry to hear what happened to your son, what's fair to take into account in deciding whether to expel the bully for attacking your son, is whether he attacked your son.
The McDonalds coffee case is one I used to talk about in disparaging terms: "She spills hot coffee on herself and gets millions of dollars? What gives?" and the like. This semester, though, I'm in Legal Studies 101; when we got to torts my teacher filled in the blanks for me. I am now much ashamed of my prior ignorance.
What gets me about a lot of those highly publicized multimillion-dollar jury verdicts is how many of them are reduced on appeal -- quite a bit (T links to one of the articles which points out that the judge in the McDonald's coffee case reduced the amount to less than $500,000 and the elderly woman settled for even less). But the big "going after the system" verdicts get publicized and picked up by the media, while the readjustments don't.
Yeah, I'd hope that the school would not take into account the status of the student in deciding whether to suspend, whether it's captain of the math team or quarterback of the football team.
Brilliant post, Teresa.
There are some things that can be done, expose these people, teach yourself and your children to question sources, make simple rules of the information road for yourself and stick to them (for example, if new information seems to make an inordinate amount of sense to you, doubt it until you can understand why it makes sense).
But for the most part, I think things will have to progress down this road until the lies can no longer be supported. Lies can last a long time. We know this from both our personal and political lives, but eventually things do crumble. It would be great if we wouldn't have to get to that point. It would be great if things didn't have to get to the point of having to crumble, but people are too innately willing to buy into what, at first, seems like common sense. Common sense is distressingly uncommon and often, on top of everything else, not particularly sensical, I'm afraid.
Common sense grows out of our experiences with the world. We aren't born with it. Maybe the problem is something is interfering with our ability to nurture, to borrow the current phrase, a reality-based common sense.
I got an ugly education in the priorities of insurance companies when I temped at an HMO. I did catch-up filing; their regular filer kept coming into work late, drunk or hungover. What I filed were refusal of drug or medical service forms, repeals of said refusals, and death certificates. Usually into the same file.
I still remember the angry doctor notes, the letters written by spouses on flowery drugstore stationary, the neatly typed letters. And the death certificates.
Taught me a lot about insurance companies.
As a civil servant (bureaucrats make up the rules for what I do), thank you. As someone who reads fine print, thank you. And as someone who was taught early on what you hear on the news may not be the whole story, thank you.
All government services require some limitations. People want these limitations to be fair, and then, they become upset when trying for 'fair' also results in 'a little more complicated'.
BTW, how are the schools supposed to handle those children who may not be intentionally disruptive--those with, say, Tourette's syndrome, or Asperger's? What do you do with a child with cerebral palsy who's certainly intellectually equipped to be in a regular classroom, even if their spasticity is sometimes distracting? Do they stop existing because they are "difficult" to deal with at times? Of course, I guess the so-called Common Sense way to handle this is to lock them in closets, or the attic or something. Unless, of course, they are the children of these Common Sense types, in which case no effort on society's part will ever be enough. Feh.
> fw yrs bck hd n rgmnt wth n f my brthrs. sd tht rght-wng dsnfrmtn hd whl lt mr mny nd rgnztn bhnd t thn nythng th lft hd t sy. H sd n, t ddn’t. sd ys, ctlly; t dd. H gn sd n t ddn’t, s sw thr ws n s n tlkng bt t, t ny rt nt wth hm. Bt t’s tr.
'm dn't knw f th lft wng's mssg s ldr thn th rght's r nt. wldn't knw hw t pt vrs tms nt th tw clmns...bt vn f trstd tht smn ls knw hw t d s n ntrl mnnr, 'd wnt t ctlly s th dt bfr jst bnt vr nd ccptd th pnn.
t sms t m tht y'r prtty qck t lbl yr brthr "nt wrth tlkng t" n ths tpc, whn - frm wht y rlt hr - th tw sds f th cnvrstn wr xctly symtrc:
"s t!"; "s nt!"; "s t!".
Hw cm th tw f y hd ths cnvrstn nd h s th dmmy, bt y'r th smrt n?
In the opening scenes of White Man's Grave, the lead character joins an insurance firm right out of college. He's told that his job is to deny claims. He asks what he should do if they are legitimate. He's told that they have high school graduates to deny the claims that aren't legitimate.
Now for a definitely true story: For decades, European insurers refused to pay out on life insurance to the descendants of Holocaust victims, in part on grounds that there were no death certificates issued. What made them finally change their minds? The threat of litigation in US courts. (Google up "Holocaust era inurance claims" for much, much more.)
Sorry, but I'm afraid I'm on the other side of the ideological fence here.
Big Faceless Corporations with Lots of Money are such an easy, strawman target. In fact, _because_ they have all that money the junk lawsuits, overregulation, etc. are much easier for them to deal with. Such burdens fall much more heavily on the local small businessperson, who doesn't have the army of lawyers and accountants to deal with them. (In fact, in my more paranoid moments I think it's the Big Corporations that are _encouraging_ the lawsuits, regulations, etc. because they realize full well that they're proportionately a far bigger burden on their smaller competitors. If someone falls on the sidewalk in front of Wal-Mart and sues, it's no big deal. Heck, WM's paying lawyers anyway! If someone falls in front of the local ma'n'pa retailer and sues them, though, it could put them out of business just through legal fees-even if a court should eventually conclude there's no tort involved.)
My wife was in private veterinary practice for many years, and saw this firsthand. There _are_ people out there who (yes) will try to cheat you. You're a Business, after all. You can afford it. They will try junk lawsuits just to make you pay protection money to avoid harrassment. (My attorney charges $400/hr. She's good-but at that rate she'd damn well _better_ be!) Of course, the attorney on the _other_ side is working on contingency, so it costs nothing to file the suit.
At the very least, the loser of a suit should have to cover all the legal fees-but even this eminently sensible suggestion is resisted tooth and nail by the tort lawyers.
And we won't even get into officious Public Servants who have, de facto, all sorts of extra-legal powers to harass you, even to putting you out of business. All in the public interest. Of course. Your Taxes at Work...
(In a later career my wife was also a Gummint Inspector--for USDA--so yes, we've seen the other side, too.)
Go check with any of your local retailers, or professionals, or other small businessfolk. I'm sure they've tales they could tell.
TJIC, I think this blog contains more than adeequate evidence that Teresa is pretty damn smart.
As for her brother, I think Teresa has probably known him for a while, and is a better judge than you or I of his intelligence and character.
Michael Wieholt said: There are some things that can be done, expose these people, teach yourself and your children to question sources, make simple rules of the information road for yourself and stick to them (for example, if new information seems to make an inordinate amount of sense to you, doubt it until you can understand why it makes sense).
I think of that every time I go to Whole Foods to buy organic produce and milk instead of the Super Sav-a-lot or whatever it calls itself. Well said.
Bruce Adelsohn asks
So what is the solution? Setting up an anti-corporate disinformation corporation? Netviduals contributing to a massive online database? (Ack! I can't imagine indexing and maintaining that beast!) I don't have the answer, but if someone comes up with a good one, I'm there
WARNING: Long and earnest
I suspect that the answer doesn't exist. I suspect, though, that parts of the answer, or maybe lots of little answers do.
I just finished editing a consumer guide to buying cars, written by someone who refuses to take anything from anyone in the auto industry. He's been exposing faulty engineering, false advertising, secret warranties, and industry dishonesty for longer than I've been alive. We can buy books and support writers like him and publishers who are committed enough to telling true stories to print the books.
We can write the books and the websites, as many do, citing sources.
We can do our homework. Painstakingly, sometimes embarrassingly (it sucks to discover that you've been taken in by some ad-agency's version of "Ethics" and that the business you thought was Different, and worth supporting, was in fact only rich and savvy.) We can learn the tricks the lying corporations use, and look behind all the Teflon and Astroturf. We can put our money and our purchasing power towards those business who know more about ethics than how to spell it.
We can calmly and politely refuse to allow lies to go unchallenged. Heck, we can do it shrilly and rudely, too, depending on what we hope to accomplish. Once the argument gets to "Is not!" "Is too!" we can't do much, admittedly. That's arguing from conviction rather than reason, and not generally effective dialectic.
And there's a mentality we can watch for in ourselves and others. I'm not certain what to call it, but it's got something to do with feeling better about ourselves because we're smarter than those sods who don't know that coffee is hot, so we don't need laws that protect us. And it's got something to do with remembering that the corporations and the insurers are not on our side, even if we're on theirs (apologies to Teresa.)
They're all things we can do. I doubt they're enough. But they're somethings.
As an Ontarian, I shudder whenever I hear the words Common Sense used in relation to education policy.
It sounds like Common Good has gotten their hands on a copy of the Ontario Conservative party's 1995 platform, the Common Sense Revolution.
The Ontario Tories' policy can be summed up in the infamous words of their education minister John Snobelen to his civil servants: "Creating a useful crisis is part of what this will be about. So the first bunch of communications that the public might hear might be more negative than I would be inclined to talk about [otherwise]. ...Yeah, we need to invent a crisis, and that's not just an act of courage; there's some skill involved."
The Conservative regime did just that. First, they convinced the public that the school system was hopelessly broken. Then, in the name of streamlining educational bureaucracy and trimming useless consultants, they cut librarians, guidance counsellors, bus drivers, music programs, physical education teachers, secretaries, cleaning staff, ESL and special education classes from nearly every school in the province.
The Common Sense Revolution is toxic. It needs to be neutralized before it spreads again.
Steve Gillett, to me the pity is that we believe we have to choose sides on this issue.
My cousin is a malpractice attorney, who got his start defending hospitals and insurance companies (he now sues his former clients for a living). He has told me (and I have every reason to believe him) hair-raising stories about incompetence and outright malice covered up by institutions in order to protect their bottom line. But he's also told me plenty of other stories about scams and extortions run against those same institutions--some very successfuly--so I have no doubt that your wife is not alone in her experience.
But where it breaks down is this: while many of us would like to change the system to get rid of predatory lawsuits and thus protect businesses and individuals, the tort reform lobby wants to change the system so that large, wealthy corporations can continue to ignore deaths and injuries and escape the consequences of their actions. The sort of person who would let hundreds of motorists die for want of a few dollars in parts fears the legal system, and that sort of person has nothing in common with you or I.
Put differently, they are using the real, legitimate problems you outline to their own base and selfish ends. What we want is protection, what they want is immunity.
I honestly don't believe this is a right-left, conservative-liberal issue, as it is often framed here in Texas. I think we could all agree on reasonable reforms if we all had good information. Entities like Common Good seek to prevent that.
PS - For what it's worth, I think that losers in a suit covering the winner's legal fees is an interesting idea, but I fear that might discourage legitimate cases. Instead, I would propose that judges and juries should be given the power to levy monetary penalties against losing plaintiffs (such monies could be awarded to the winner) if the judge/jury felt it warranted by the facts of the case. What do you think about that?
TJIC:
Either every opinion is equally legitimate, or ... well, not.
If they're not, then I suspect Ms. Nielsen-Hayden believes her brother's opinion was not equally legitimate in this case---for reasons of common sense backed up with her available experience, I would guess.
If they are, then it's still perfectly legitimate to suggest that her brother wasn't worth talking to on this, and, in fact, that he is made entirely of pineapples and has a choir of dancing angels on his head.
Not that I think she is automatically right! Just, sometimes it's *okay* to think that people who disagree with you are fundamentally mistaken, even if you should leave room for those random discoveries that one is wrong. ^_^
Rebecca
Hm, seems like "Tort Reform" is in serious need of reframing:
Tort Reform: Making shoddy workmanship economically viable
Tort Reform: Protecting Exploding Pintos from Frivolous Lawsuits since 1998
Tort Reform: Because the deceased don't really need all that money
Tort Reform: Your responsibility as an adult doesn't end just because you're under anesthesia
Tort Reform: Because the doctor didn't leave a scalpel inside you on purpose, so cut him some slack. OK?
Tort Reform: Because sometimes, tires just explode, and no one really is to blame.
Damnnn!!! Who knew reframing could be so fun...
;)
Tort Reform: Because six million dollars is too much for two legs, an arm, and an eye.
Tort Reform: Because you can't put a price on human life. We're just making it official.
Greg, if you're still calling it "tort reform", you're not going as far as you ought.
Anyone got a good two- or three-word handle for this concept? Some possible angles of attack:
- Undermining the legal system
- Depriving the injured of redress
- Helping insurance companies squeeze doctors dry
- Helping the guy who hurt you get away with it
I can't quite boil these down into something pithy and short enough. At least not right now. Maybe something will pop into my head tonight when I'm trying to get to sleep, or tomorrow in the shower.
Easy, Avram. "Screw the little guy."
They are trying to take away our right to sue.
Nah, linkmeister, we need something that identifies the concept, that can be used in news broadcasts and editorial pages and survey questions.
"right to sue" is a step in the right direction, but the problem is that lots of people already don't like the idea of lawsuits. Lawsuits are something that some other guy files, some loser who wants some free money. Until they themselves find grounds for a lawsuit, of course, but how many people think that'll ever happen to them until it actually happens?
I'm looking through Thesaurus.com's list of synonyms for "redress". "Compensation" has potential. It's long, but it connotes fairness. The corporations want to take away your right to fair compensation in the courts. "Compensation caps"? "Compensation limits"? Not quite there yet.
Steve Gillet --
Problem with the issue of liability and lawsuits is that there is plenty of truth on both sides. The system is broken, but there is no obvious fix. It's a system problem; trying to fix just one part (like by capping damage payouts) will just make things worse.
What is *not* controversial is the role of the Astroturf organizations that exist only for the purposes of disinformation and character assassination. They're vile and should be stomped on with whatever force is available. (Revealing their sources of funding usually does it.)
As to the "Common Good" business, remenber that one of the goals of the Right Wing is to destroy public education.
Tort Reform: So You Know Who Pays.
"Special rights" (typically in the context of ("...for homosexuals") seems to be a formulation that the right has used to some success.
How about a little verbal judo? No special rights for corporations.
"Tort Reform" == "Corporate Immunity"
Teresa, I really appreciate posts like this. It seems to me you do a really good job of taking on the reluctance to believe in the vulnerability to propaganda without stirring up defensiveness.
Greg, try Molly Ivins, "tort deform" or maybe, "Tort reform: so your insurance doesn't ever have to pay."
IIRC malpractice premiums are exploding because the insurance companies took a bath in the securities market, a few years back. I've been hearing these claims, I think, for decades; the noises seem to get louder every time the financial markets slip. In general, insurance companies do business by taking in premiums, investing them, and paying claims from their investments. Usually (I've seen studies, though I can't cite them), they underestimate the risks of their investments and take a bath when the markets do badly.
And what are we going to do when climate change starts breaking insurance companies?
Actually, with all due respect to Avram's response, "TJIC"'s comment is beyond offensive:
It seems to me that you're pretty quick to label your brother "not worth talking to" on this topic, when - from what you relate here - the two sides of the conversation were exactly symetric:
"Is too!"; "Is not!"; "Is too!".
How come the two of you had this conversation and he is the dummy, but you're the smart one?This is built on two straight-up misrepresentations of what Teresa said. First, TJIC puts the phrase "not worth talking to" into quotes, suggesting that it's a quote from Teresa; but in fact what she said was "I saw there was no use in talking about it, at any rate not with him." Second, he asserts flatly that she called him a "dummy" and claimed to be "the smart one."
There's a word for this; it's called lying, and it stinks in the nostrils of decent human beings.
(By the way, all three of Teresa's brothers are darn smart, and I've never heard her suggest otherwise. Deciding that there's not much point in pursuing an argument isn't the same thing as deciding the other person is a dummy. However, that fact kind of gets in the way of the nasty insinuations that TJIC wanted to make.)
When I worked at McD's, in the late 80s, coffee was supposed to brew at 180 degrees F and be served at 140-160 degF. (It's possible--even likely--that I'm misremembering the 180 and it should be 190). I'm wondering whether they changed it after I left, or if the cases came from McD workers filling the cup directly from the brew spout instead of from the pot (as I know sometimes happened at the one where I worked when there wasn't any coffee ready).
Also, last time I saw this come up, I thought some said that the point of the hotter temperature was to use less coffee grounds, rather than to keep the coffee longer.
As I understand it, the damages awarded in a lawsuit often are classified as actual versus punitive damages. So to pull out the old McDonalds-coffee-in-the-lap chestnut, the scalded plaintiff was only trying to recover her medical costs (actual damages), but the court decided to award a very large amount of money on top of that (punitive damages) because McDonalds had been scalding people for years and the court wanted to give McDonalds a spanking.
Now I completely agree with the reasoning behind punitive damages. The only way to make a corporation change its behavior it to kick it in the moneybags. My question is, why does the plaintiff get the money? Going back to the McDonalds' example: The first 999 people to get scalded by McDonalds' coffee got small awards, out-of-court settlements, etc. The thousandth person got the big punitive payoff. Having McDonalds pay out big money is just; having that money go to plaintiff #1000 seems like a lottery.
One of the big items on the tort-reform shopping list seems to be a limit on punitive damages. Would it make more sense to change the way in which punitive damages are applied, rather than their size?
To combine some ideas broached by Ariella and Jennie: it always seemed to me that Harris' Common Sense Tories got into power by appealing to exactly that sense of annoyed superiority. The Tory's Red Book outlined a plan whereby the good, hardworking middle class would no longer be penalized for all the shiftless losers who were, let's face it, just scamming welfare. People thought, "Hey, I work hard - why should I pay for anyone who doesn't?" Mean-spirited and short-sighted, perhaps, but very appealing to that shallowly buried sense of ill-usage.
What Ontario got, of course, was a decimation of social, educational and health services. And was shocked to realize that the cuts and shortages wouldn't just happen to other people.
The school said that it wasn't fair to take into account that our son had the highest grades in the school, was Captain of their Math Team, while the bully was always failing every class.
I have my own history of surviving thugs in public school (they shut down my school after I left, as well as the one next door, because of felonies committed in the neighborhood, although not before the guidance counselor went nuts and attacked his wife with a hatchet - he'd told my mother the year before that there was no defense against the bad actors), so I sympathize greatly with your son.
That said, I can't think of any way that the academic standings of the children in question were relevant to the situation. The bully should have been expelled even if he'd been an academic superstar and his victim had worse grades than he.
Oh dear.
Teresa is an intellectual snob?
And here I thought she was making the sensible decision not to continue to contend on an issue where she and her brother couldn't agree on what is in contention, so there was no possibility of middle ground.
Wisdom and intellect are not the same thing, and it's not a mark of snobbery to use either (or, as in this case, both).
"Would it make more sense to change the way in which punitive damages are applied, rather than their size?"
Here in California the Terminator has proposed giving 75% of punitive damages to the state rather than the plaintiff. Other aspects of his proposal are quite flawed, but that part sounds interesting, in that it might tend to overcome juries' suspicion of plaintiff motives and result in larger punitive awards.
I agree that "right to sue" is not everything I'd like it to be. It was short for "if all else fails, at least you can sue the bastards." Not that I am proposing that phrase...
"Corporate immunity" is strong. It's not completely clear what the immunity is from. Maybe "lawsuit immunity" or "corporate legal immunity." The important thing is to not use the word "reform" because it connotes a positive change. "Tort" is a technical term and I don't know how many people really know what it means, but "tort reform," whatever it is, sounds okay. "Tort limits" would be more accurate, even if it isn't catchy.
Unfortunately, there is far too much of this kind of crap going on. When I was working/volunteering for a local environmental group fighting the proposed high-level nuclear waste dump at Yucca Mountain, we regularly battled large, well-funded, national entities passing themselves off as environmental/consumer-rights groups only to discover that they were actually lobbying *for* the dump under the guise of appealing for safety or "clean, efficient power for all."
We discovered that the fastest way to debunk a group like this is to look at who is on its Board of Directors/Advisors. When you've got a group calling itself "Grassroots Enterprise" lobbying for the dump with John Sununu on the board of advisors, something isn't right.
There's also a lot of obfuscation in the click-to-donate world. Lots of people think every click goes straight to charity, but in reality some of those sites are operated as for-profit entities in which only a small percentage goes to charity. I used to try to keep track of these sites here: http://kimberlychapman.com/charitycheck/charitycheck.html but had to stop due to lack of time to do it properly.
Tort reform: never having to pay your victims.
"Here in California the Terminator has proposed giving 75% of punitive damages to the state rather than the plaintiff."
Better: put 75% into a fund which will (a) compensate plaintiffs in cases where the defendant has either gone bankrupt or is able to avoid paying (by fleeing the country, f'rex), and (b) fund research into product/service safety enhancements, perhaps by funding modest grants to researchers. In the case of (a), the responsibility for pursuing the plaintiff for recovery of damages then falls to the state, and the state gets to keep the money if successful (providing an incentive for vigorous pursuit).
The big problem with this proposals is that politicians will see this big pot of money sitting there and try to use it to fund pet projects. Smarter folks than I will have to figure out how to avoid that.
I consider this the Libertarian Two-Step. Step One: spend 20 years telling us how government regulations are ideologically impure, and how all injustices can be resolved in the courts. That will be sufficient, we're told, because what company would be foolish enough to make unsafe products and expose themselves to an expensive lawsuit?
Let that sink in for a while...then more to Step Two, which is "Lawsuits? How unfair!" For Step Two-A, Chutzpah Edition, add "Lawsuits? How unfair -- why, selling tobacco [for one notorious example] is pefectly legal!"
Avram, Rebecca, I'd never call that brother dumb, and I have infinite faith that he'd still like me better than he'd like TJIC, no matter what I'd said about him.
The exchange in question started with me saying "is" and him saying "isn't." My "Well, yes, actually; it is" was said the you do when you want to indicate that there's quite a lot of information on this subject and you're willing to explain it. However, the second "isn't" put things on a different footing. I took it to mean "is not, and I don't care that you have enough evidence to make my ears bleed." I'm very fond of that brother, but when he gets dug in he makes the Canadian Shield look yielding. I live in hope that someday we may get back to that subject and try it again.
As for improved terms for tort reform, I've been thinking of it as "oppressing the poor, the needy, the sick and the afflicted, and all those who have cause to mourn." Short version: "robbing widows and orphans."
Hmmm. Not very snappy.
How about referring to our side as the Right to Fight Back?
Randolph, Ariella: is that actually a declared objective of the far right? I've never understood what was "conservative" about giving kids a pauper's education. A good school system has all the conservative vitamins and minerals: hard work, self-improvement, displays of public virtue ... what's not to like?
What amazes me is how often I've heard complaints about having to fund schools from people whose very comfortable incomes derive from industries that would never have come into being if we hadn't had the school system we had in the 60s and 70s.
Don't these people understand how much cheaper it is to have a kid in school than to have him in and out of prison? And if you keep the kid in school, eventually he'll be magically transformed into a productive tax-paying working citizen. It's a stone bargain.
Julia, if I tried to play intellectual snob with my family, they'd rejoice at my generosity in providing them with such a sumptuous great target to shoot at. It would be memorable. The best bits would be lovingly brought out at gatherings for decades to come.
A plug for PR Watch and Disinfopedia seems appropriate.
Kate Nepveu and tavella,
Of course you're right. By my compressing a more complicated story, I appeared less rational than usual.
We intentionally moved into the "wrong part" of a racially integrated community. This was, in part, progressivism, and, in part, that we see nothing wrong in letting other peoples' prejudices bring real estate values down to where we could afford them.
Hence we got an 11-room 2-storey house (counting each of 2 large true bathrooms as 1 room), over 2500 square feet, solidly built in 1930, many built-in bookshelves, 2 fireplaces, large attic, with just under a quarter acre, in the mountains, with sea view (on an unusually clear day), with front and rear gardens, orange trees, Brazillian silk-floss trees, private due to a 3-meter tall hedge, 3 blocks from a large park, and in Los Angeles County for under a quarter million bucks (in 1989).
Homes the same size, on same-sized lots, half a mile away "on the good side of Lake Avenue" were going for over a million dollars at the same time.
The local public school also made a big deal about the benefits of the multicultural environment. All speeches by the Principal at Assemblies were made, fully, both in English and in Spanish. Nobody (so far as I know) demanded equal time for Ebonics.
The school had a very active parent group, and strived to be competitive with the "good" schools in the "good" neighborhoods in academic competition. They were particularly proud of their Math Team. They were concerned that the younger siblings of gangbangers were being bussed from the "better" neighborhoods into ours, as a dumping ground for known troublemakers and/or children of inadequate parents.
My point was not about fairness at the time. More precisely, I said that their own political agenda was being advanced by our son. The issue of fairness had already been made, unsuccessfully, as was the fact that the bully had been the subject of such complaints roughly a dozen times by then.
The private school was good in many ways, typical of the large budget, in terms of facilities, equipment, and the like. They kept promising to put our son in a more advanced Math class. After they failed to do so once again, we pulled him (about 1.5 years after he'd entered) and placed him in an interesting public school with a hippy heritage, low on discipline, high on on independent study.
Our son led their Math Team to victory after victory. He was elected Treasurer, re-elected, then finally graduated 8th grade as Student Body President (elected by all students in K-8) and Valedictorian. Then he went straight into University.
The issue was that, if his first public school could not be fair, we hoped that they could be biased in our favor. They were not. They were biased in favor bullying-within-the-box, and worshipped their flow charts.
My son had three outstanding teachers at this pseudo-Summerhill. Then a PC Principal moved in and terminated the careers of all 3. He also attempted to censor my son's Valedictory speech, but that's another story. In the trenches of the Culture Wars, there are no innocent bystanders.
This is all tangental to the actual topic of this thread. It simply gives a data point on why so many people have a knee-jerk bias towards true reform of procedure, which makes them perfect dupes of the astroturf organizations (i.e. those which pretend artificially to be grass-roots).
Tort Reform: Because people will lie for a million dollar lawsuit, but billion dollar corporations are basically honest
There's probably a frame involving a camel, a needle, and a rich man, but i cant quite put the bits together...
The 'tort reform' one is tricky, because it's two abstract lies in a peculiar intersection, so that no one is really sure just what it means even denotationally.
I think the best response is 'your right to be heard', since that's effectively what that faction wants to remove.
(the real re-frame is 'money isn't speech', but that one is going to take some work.)
The problem with giving damages to the courts (or the legal branch of government, or any other branch of government) rather than the injured party is that this gives the courts an incentive to apply damages whenever they can, for the largest amount that they can.
You get what you reward, so this is not a mechanism for reducing the size or frequency of awards of damages.
Look up 'tax farmer' -- schemes like this are why the Enlightenment notion of independent judiciaries gave us the court system we presently enjoy.
And while I suppose the agenda is, fundamentally, to get rid of the Enlightenment and that pesky concern for facts, I can't see why anyone not already rich, powerful, and conscienceless would care to go along with it.
"Here in California the Terminator has proposed giving 75% of punitive damages to the state rather than the plaintiff."
This will have a chilling effect, since the typical contingent fee for a case which goes to trial is, I believe, 50% of the settlement. One has to remember that the work required to win such a suit is very expensive. Personal injury lawyers spend a lot of time, effort, and money on difficult cases and winning is not guaranteed; such a change would limit the legal resources available to victims and limit victims compensation as well. Funny thing about that.
"Tort reform: make sure you can't afford a lawyer."
Teresa --
You know how I'll sometimes assert that Libertarianism is a political philosophy that's really about demanding that social skills shouldn't matter, in a rational (= good, well organized, right, virtuous) world?
I think that generalizes; if you don't make the (hard, awkward, unpleasant) effort to deal with things as they are, you wind up wanting an idealization of your childhood out of life.
Fewer and fewer people are made to deal with things as they are; fewer diseases, fewer fatal accidents, fewer requirements for hard work of a number of kinds, but especially the kinds where errors cost limbs and eyes and lives. (Yes, I know that this is still going on; my point is that it's going on less, to the point where it can be completely ignored by people in the upper middle class. That wasn't true when ninety percent of everybody were farmers, or when fifty percent of everybody was stacking bricks or boxes or the hot bending iron.)
So you get that essential magical thinking of fascism, the demand to return to an ideal time (whatever is remembered as good from around the age of five, really) by sheer force of will and rightness, and no counter weight of experience that cannot escape acknowledgement.
(I bless the winter, and the Lady of the Ice, for keeping us even so mindful as we are. The madnesses of crowds do correlate with climate.)
As political movements go, back-to-five fascism is incredibly bogus; it destroys society and wealth and the Settled Peace, in large part because the response to opposition and counter example is to believe harder, and shout louder. It won't work, but by the time the centre cannot hold, the edges are toppling inward, and what comes after is whatever green shoots can make it to light and air before the rubble chokes them.
But, anyway, the most of them didn't think school was a good idea when they were five, and scholarship -- those pesky facts again -- surely does not find itself on their list of good things. Accept one fact as a fact and then were are you? [1]
So of course schooling has to go, whatever rationalization comes by this week and whatever short term calculation of economic benefit is claimed as overriding -- "my children will find it easy to get good jobs, because everyone else will have to admit they're stupid" makes a kind of sense to far too many people.
[1] Mike's Kepler verse put that better than I ever could; it's in a From the End of the Twentieth Century, and a box, so I shall not try to quote it.
Graydon,
It could be because I've been at work for about 12 hours now, but I just cant get what you're trying to say in your "Liberatarianism philosophy" post, other than that growing up on a farm is good in some way that I can't put my finger on, except that I think it has something to do with the quite-real possibility of losing a finger on said farm. could you rephrase that for those of us who are fried of brain?
Steve Gillette:
Just because the plaintiff's attorney is working on a contingency doesn't mean it costs nothing to file a suit--and that's setting aside the actual filing fee ($300 or so in California, for instance) as de minimis for purposes of this discussion. Plaintiff's attorneys who want to be successful don't get in the habit of filing without doing some due diligence on the merits of the case first. And once that's done, and a case has survived a summary judgement motion (which takes a lot of effort to defend, even if the motion is largely bogus), there's a ton of time and effort that's put in to preparing and going through trial.
Is there abuse of the system? I'm sure there is. I'm getting a little bit tired of hearing all the "greedy trial lawyer" propaganda, though.
JVP, are you ever going to notice that the story of your kid and the bully, while interesting enough in its own right, is not germane to the subject of my post?
I've never understood what was "conservative" about giving kids a pauper's education.
Well, until fairly recently in the state of Mississippi, it was part of the mechanism whereby the Lords of the Delta maintained their grip over both the blacks and the poor whites.
Uneducated blacks meant an unlimited supply of farm labor, since they had no other options.
Limited educational opportunities for whites who were "not our kind of people" guaranteed limited competition for good positions, as well as insuring that these people would be frustrated and resentful. You might then, through clever manipulation, direct this resentment away from you and use it to help control the blacks.
I am so not making this up. Kindergarten programs were not publicly funded in the state of Mississippi until the early 1980s, and every effort before then to reform the educational system to provide for this funding, as well as many other education reforms that the people of Mississippi in general were in favor of, were blocked by efforts orchestrated by the same group, over and over and over again.
Yes, it was stupid and short-sighted. It's one of the reasons Mississippi, like Alabama and Louisiana, is always at the bottom of the pile in so many areas having to do with education, health, and income. It's the sort of thing that's been sold, through clever distortion and manipulation, to honest, but not deep-thinking, conservatives everywhere on the planet thoughout history. It's the policy of the sort of reactionary We-will-keep-what-we-have-and-let-none-come-near-us monsters who have tried to block every reasonable and sensible effort at reform and justice, from before the time of the Gracchi unto the present day. They don't want general prosperity and happiness. They want to have as much as they can grab, and to mete out what little is left to clients who will be forever beholden to them for those crumbs. If this means that there's less total wealth out there to be had, fine--as long as they have complete control of what little there is, they feel things are fine.
It's not a position where rationality and good sense can be expected to apply. You can influence a true conservative through the use of reason and good sense. This is all about insuring that Them What Has not only Gets, but also Keeps, and makes damn sure they control who else gets even a little. The only far-sighted part about it is maneuvering to insure that Things Don't Change, no matter what events may suggest change would be a good plan. Serfdom? It's a Good Thing!
Re: contingency: what Trent said, and I work as a defense lawyer. Contingency != free. You want near-free and frivolous, you want inmate self-represented lawsuits (oh, do you ever!), and Congress has already made several efforts at stemming those.
Great post, Teresa.
However, while some individuals try to cheat the system (and succeed at times), corporations do it more often and at greater cost.
I'm currently working for an environmental non-profit whose job is to help individuals deal with corporations (sometimes, yes, to sue those corporations). We get to deal with stuff like this:
http://www.pennfuture.org/work/water/fishkill
An individual trying to cheat a corporation typically can't do the kind of damage to society that a run-amuck corporation (or politician) can.
We do get more lawsuits than we should, because too many injured people have no other way to pay their medical bills. Some sort of universal health care is the obvious solution to this part of the problem.
Chris S, please! No Tory platform was ever a Red Book. It would have to be a Blue Book. (In Canada, the political colours are reversed: red is Liberal and blue is Conservative.)
Teresa: it's not education itself that gets conservatives' knickers in a knot, so much as the idea that a government-run school system is capable of producing first class results. In the Ontario case, after hacking away at the public schools for eight years, the Tories declared them broken and tried to introduce a limited form of voucher system.
Trent Goulding said:
"I'm getting a little tired of hearing about all the 'greedy trial lawyer' propaganda, though."
Well, I don't recall that I mentioned it. I mentioned actual circumstances under which lots of small businessfolk (!= those Big Heartless Corporations) find that the notion of "tort reform" resonates.
By the way, my surname is "Gillett", not "Gillette".
From Salon.com War Room today: http://www.salon.com/politics/war_room//index.html
"George W. Bush: Our Leader."
That message, stamped in looming letters alongside the president's smiling mug, currently graces several billboards in Orlando, Florida, along Interstate 4. . . . The billboards in question are controlled by media juggernaut Clear Channel Communications, and also carry a tag saying that the contents are a "political public service message brought to you by Clear Channel Outdoor."
At the same time, the networks decline advertisements from the United Church of Christ which indicate that any and all are able to attend their denomination without fear of censure -- the ad is too political.
I don't think corporate America is even trying to hide what it is doing. The laws passed in the early 70's after the scandals of CREEP and Watergate are, like the Geneva Convention and in the words of our new Attorney General nominee, quaint. By any other name, they are propoganda, and they are working. Our last election shows that you can fool most of the people for the time necessary to win.
Winning is everything baby . . .
Our Governator out here in Caleefornia said he wanted to make Caleefornia a mecca for business again. In fact, as a stunt, he has driven his Hummer to Nevada to help pack up and load the property onto trailer trucks of businesses relocating to the state. So for him, lowering the dollar amout of care patients in the workers compensation plan obtain for rehabilitation is making Caleefornia a business friendly state.
Hmm. Maybe it's just as well the social conservatives don't like him because of his libertine past? Otherwise they'd be clamoring for a President Schwarzenegger after a "quick" mutilation of the Constitution.
I practice criminal defense law exclusively, but my clients, indigents all, often have no recourse for civil redress of their claims. Loss of contingency fees would mean they would never be able to hire a lawyer to present their claims. Their poverty does not equate with dishonest intentions. Poor people can and often are grieviously injured due to negligence (sometimes gross) of companies and government institutions. The law teaches that we try to make them whole. Punitive damages are for punishment and serve as object lessons.
Thinking about punitive damages in that light, you might consider the justifications proffered for the three-strikes and death penalty laws in many jurisdictions. My personal favorite is deterrence. Well a rationale for punitive damages is deterring bad behavior by businesses.
Ohboy. Teresa, when you open a can of worms, it's the large economy size can, isn't it :-)
This topic leads me in so many directions I can't even begin to compose a coherent comment, so just a few thoughts:
From personal experience, the civil legal system sucks rocks. I had to spend somewhere around $30,000 in legal fees to deal with a *silly* lawsuit filed against me by an ex-partner in a very small business. (According to my attorney, I had plenty of grounds to sue the other party, but he recommended against it, since the stakes weren't high enough to make it worth my paying his fees -- so much for money-grubbing lawyers.) I suspect the criminal justice system is worse -- and the consequences for those caught in it more severe.
Alas, the "fixes" are almost always simple, obvious, and wrong. Some of them are also fraudulent, but even the more-or-less well-intentioned ones are fraught with unintended consequences (e.g., CA's "three strikes" law). The playing field is certainly tilted toward big corporations, but that doesn't mean big corporations never get screwed (the silicone breast implant mess comes to mind).
Some fixes do seem obvious to me: we ought to be spending much more on the judicial system, so cases come to trial *much* faster. We ought to have much better public legal services, fewer obstacles to non-attorneys providing legal services, and much higher limits on small claims, so individuals who can't afford $400/hour or attract contingency-fee lawyers can have access to the legal system. Some system for allowing the prevailing party to collect legal fees probably makes sense, provided it comes with safeguards against abuse. But trying to prevent all screwups, or even all screwups of a particular type (overlarge jury awards, repeat offenders being set free) with absolute, inflexible rules is just idiotic.
I gotta go to bed...
Here in Australia, we have the shining example of building supplies corporation, James Hardie, running scared after a positive link was made between mesothelioma and all those asbestos roofing and fencing sections they sold. In 2001, they told investors that they had set aside sufficient funds to compensate victims of asbestos-related illnesses. They then set up a Medical Research and Compensation Foundation to deal with asbestos claims, and moved the rest of the corporation to the Netherlands, where corporate liability laws are different from Australia.
It's now obvious that the foundation is insufficiently funded for anything like the numbers of claims being made - a New South Wales governmental enquiry found that it should have been funded at least five times as much, possibly eight times. The foundation is saying it will probably have to go into liquidation. So James Hardie is offering them several extra millions of dollars - if they agree not to pursue the corporation legally.
On the other hand, the Australian Securities and Investments Commission is after James Hardie, particularly in relation to the oh-so-convenient timing of their move offshore. And our Prime Minister is actually saying that the company has to pay and that he will commit whatever federal agencies are necessary to ensure that they do.
Possibly James Hardie may end up being an object lesson for other large companies that corporate greed and lack of ethics are ultimately counter-productive. Or (more likely) not. But the fact that at least one company looks as if it will be held to account for its actions gives me some hope.
Though I have a sneaking suspicion that the problem they are facing is only because they were willing to accept some responsibility for asbestos-related illnesses in the first place. I wonder whether they'd be in this position if they had done the same as the tobacco companies and steadfastly refused to accept any liability for the injuries caused by their products.
jennie, what's the name of the consumer guide?
Graydon, as far as I can tell that particular sort of flowchart gripe isn't about trying to destroy the schools, it's about wanting to give teachers and administrators arbitrary power.
More generally, I've chewed on the question of what a humane legal system would look like (at a minimum, I'd like to see one where people have a reasonable chance of knowing in a advance whether their actions are legal or not and where just getting sued or suing isn't beyond the resources of a lot of people but where people do generally have recourse if they've been injured) and I don't even have a feeling for how it could be structured.
Nancy, you don't see how that flowchart ties into an argument along the lines of The public schools aren't safe or effective, the bullies disrupt classes so nobody can learn, and nobody can stop them because of all the bureaucracy, we should just tear the whole system down and hand it over to the private sector?
What I really don't understand about the use of the McDonald's coffee lawsuit as propaganda is that the business in question has not gone under, been forced to close all of its west coast operations, or in any way I can see actually been harmed. It was barely a blip for them. "If this sort of 'frivolous' lawsuit goes on, the major companies will...barely be affected!" Why does that kind of propaganda work? Is it that ordinary people have a hard time conceiving of $2.6 million not mattering?
Mris: Is it that ordinary people have a hard time conceiving of $2.6 million not mattering?
Yes.
Avram, Rebecca, I'd never call that brother dumb, and I have infinite faith that he'd still like me better than he'd like TJIC, no matter what I'd said about him.
Oops. *^_^*
I have become a surprisingly relevant object lesson in the difficulties of spotting the introduction of hidden assumptions! My apologies.
Thanks to Sally, above, for summarizing (pruning ruthlessly) the James Hardie situation, I've been contemplating putting it here for a while. Just a couple of quick following notes:
There's a wine company from Australia called James Hardy - you may find some bottles around - no relation at all (note spelling difference), just a nasty coincidence for them.
The 'hot coffee' case was real, but do remember some other examples you see in those lists are either total fabrications (I think 'cruise control' was), or someone did try to sue (the circumstances may be exagerrated (exaggerated?) in the story) but the case was quickly dismissed as without merit.
The debate on "Tort Law Reform" in Australia (usually done at State level, since much of the law involved isn't Federal) is often couched in the form of "taking responsibility for your actions". Except the "responsibility" is always implied to be on the injured person, e.g. you jump into shallow water, become paraplegic/quadraplegic & sue the local council for not signposting the danger (several cases over the years).
The main problem in these examples is that without some sort of legal damages settlement the person won't be able to afford all the expenses of care & home alteration, etc. which will allow them to live a decent human life, preferably for a reasonable while, rather than being dumped into minimal care & surviving a fairly miserable & short while.
Many feel that rather than the councils become paranoid about every possible danger, they should only have to take enough reasonable precautions for the safety of people to avoid negligence claims and the care of disabled people should be better arranged. It's not like many people will be deliberately or carelessly breaking their necks to get the money.
The other example I'm thinking of is where someone is injured through the negligence of a company or its employee - I remember someone bungee-jumping was attached to the wrong length cord, broke their back & became paraplegic. Yes, bungee/bungy -jumping has danger, but so has flying, and we don't feel it right to sign away our legal rights to damages if the company has deliberately &/or carelessly neglected to maintain its aeroplanes and because of that the one you're on crashes.
Surely the company/doctor/whoever also has responsibility for the results of its actions too? That's my turn-back whenever I can talk to someone following that line of argument.
Avram, you're right--that is an argument against public/bureaucratized schools, but it's also definitely a "the people in charge shouldn't be questioned" line of thought. People who use that argument might well settle for teachers who can suspend or expel students with no recourse and would probably also want teachers to be able to use corporal punishment.
I've had, for some time now, a gut-deep feeling that we (broadly: the west) took a wrong turn some time in the 17th or early 18th century -- around the time of the stuff Neal Stephenson wrote about at such vast and absorbing length in his Baroque Cycle trilogy.
The nature of the wrong turn is quite simple: we allowed the existence of limited liability companies, but we limited their liabilities in the wrong way.
I'm not sure what the right way would have been; if I did, I'd probably be on the shortlist for a Nobel prize in economics. But what I do know is that somehow we've ended up with a corporate ecosystem where the short-term pursuit of profit is so heavily valued that corporations will metaphorically slit their own throats (actively undermining their own best long-term interests and hence future profitability) to squeeze the last cent.
The Ford Pinto is a classic example; compare Ford's reputation with, say, Volvo, who spent more attention to vehicle safety and made a marketing point of it. Ford owns Volvo these days, which strikes me as subtly wrong. To take these two well-known brands as metaphorical placeholders, we have "Ford" (a random company producing cheap widgets) and "Volvo" (another company in the same business producing safer widgets). A working regulatory environment would impose safety controls on "Ford" that would require them to match the level of safety-mindedness at "Volvo", but instead they can build cheaper, flimsier vehicles and end up with more money, which in turn allows them to hedge against the political risk of tighter regulation. And as long as the pursuit of short-term profit is the sole determinant of corporate merit, corporations will continue to prefer to insure against problems (either by buying "Tort Reform" laws by way of crooked politics and astroturf campaigns, or by purchasing real insurance policies) rather than fixing the problems directly.
(See also the James Hardie case, above.)
How could we re-jig the legal framework of company law in such a way that companies are rewarded for pursuing their long-term self-interest (i.e. happy, satisfied customers) rather than choosing the path of short term profit-at-any-cost, regardless of the damage it causes?
Nancy Lebovitz wrote:
People who use that argument might well settle for teachers who can suspend or expel students with no recourse and would probably also want teachers to be able to use corporal punishment.
I can't say that I really equate the two. There's a vast difference between "suspend/expel on whim" and "having recourse to physical punishment"[0].
Personally I'm somewhat in favour of corporal punishment (although much more in favour of the "drop and give m
Comments on Common fraud: