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December 3, 2004

Common fraud
Posted by Teresa at 11:00 AM *

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 site, 29 May 2003:
Consumer Group & Author Reveal Corporation’s Invisible Hand Behind Attack On Individual’s Legal Rights

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.
That is, Common Good is a corporate-funded organization whose entire purpose is deception and the spread of disinformation.

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 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.


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 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.

Comments on Common fraud:
#1 ::: Bruce Adelsohn ::: (view all by) ::: December 03, 2004, 01:09 PM:

Ten years of serious injuries didnít get them to turn down the temperature on their coffee pots. Two daysí coffee profits did.

Never doubt that itís worth their while to lie to you. When youíre talking about really big corporations and really big money, itís 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).

Itís different now. Thereís 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

#2 ::: BSD ::: (view all by) ::: December 03, 2004, 01:12 PM:

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?

#3 ::: Jonathan Vos Post ::: (view all by) ::: December 03, 2004, 01:27 PM:

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.

#4 ::: Tracina ::: (view all by) ::: December 03, 2004, 01:29 PM:

Teresa: I first ran the organization Common Good

I'm sure you'll want to add the missing word there. :)

#5 ::: Kate Nepveu ::: (view all by) ::: December 03, 2004, 01:36 PM:

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.

#6 ::: Will "scifantasy" Frank ::: (view all by) ::: December 03, 2004, 01:48 PM:

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.

#7 ::: Moira ::: (view all by) ::: December 03, 2004, 01:48 PM:

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.

#8 ::: tavella ::: (view all by) ::: December 03, 2004, 01:52 PM:

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.

#9 ::: Michael Weholt ::: (view all by) ::: December 03, 2004, 02:04 PM:

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.

#10 ::: ElizabethVomMarlowe ::: (view all by) ::: December 03, 2004, 02:08 PM:

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.

#11 ::: fidelio ::: (view all by) ::: December 03, 2004, 02:23 PM:

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.

#12 ::: TJC ::: (view all by) ::: December 03, 2004, 02:38 PM:

> 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 ddnít. sd ys, ctlly; t dd. H gn sd n t ddnít, s sw thr ws n s n tlkng bt t, t ny rt nt wth hm. Bt tís 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 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?

#13 ::: Doug ::: (view all by) ::: December 03, 2004, 03:04 PM:

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.)

#14 ::: Steve Gillett ::: (view all by) ::: December 03, 2004, 03:15 PM:

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.

#15 ::: Avram ::: (view all by) ::: December 03, 2004, 03:18 PM:

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.

#16 ::: Kristen Hartmann ::: (view all by) ::: December 03, 2004, 03:18 PM:

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.

#17 ::: jennie ::: (view all by) ::: December 03, 2004, 03:20 PM:

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.

#18 ::: Ariella ::: (view all by) ::: December 03, 2004, 04:04 PM:

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.

#19 ::: Dr. Maturin ::: (view all by) ::: December 03, 2004, 04:13 PM:

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?

#20 ::: Rebecca Borgstrom ::: (view all by) ::: December 03, 2004, 04:18 PM:


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. ^_^


#21 ::: Greg London ::: (view all by) ::: December 03, 2004, 04:27 PM:

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...


#22 ::: Greg London ::: (view all by) ::: December 03, 2004, 04:43 PM:

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.

#23 ::: Avram ::: (view all by) ::: December 03, 2004, 04:45 PM:

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.

#24 ::: Linkmeister ::: (view all by) ::: December 03, 2004, 04:50 PM:

Easy, Avram. "Screw the little guy."

#25 ::: TomB ::: (view all by) ::: December 03, 2004, 04:57 PM:

They are trying to take away our right to sue.

#26 ::: Avram ::: (view all by) ::: December 03, 2004, 05:07 PM:

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'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.

#27 ::: lightning ::: (view all by) ::: December 03, 2004, 05:18 PM:

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.

#28 ::: Dave Bell ::: (view all by) ::: December 03, 2004, 05:22 PM:

Tort Reform: So You Know Who Pays.

#29 ::: Mike Jones ::: (view all by) ::: December 03, 2004, 05:23 PM:

"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.

#30 ::: Alex Cohen ::: (view all by) ::: December 03, 2004, 05:54 PM:

"Tort Reform" == "Corporate Immunity"

#31 ::: Randolph Fritz ::: (view all by) ::: December 03, 2004, 06:15 PM:

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?

#32 ::: Patrick Nielsen Hayden ::: (view all by) ::: December 03, 2004, 06:19 PM:

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.

#33 ::: Patrick Nielsen Hayden ::: (view all by) ::: December 03, 2004, 06:21 PM:

(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.)

#34 ::: JimT ::: (view all by) ::: December 03, 2004, 06:37 PM:

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.

#35 ::: Andrew T ::: (view all by) ::: December 03, 2004, 06:38 PM:

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?

#36 ::: Chris S. ::: (view all by) ::: December 03, 2004, 06:52 PM:

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.

#37 ::: julia ::: (view all by) ::: December 03, 2004, 07:01 PM:

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.

#38 ::: julia ::: (view all by) ::: December 03, 2004, 07:08 PM:

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).

#39 ::: Dave Trowbridge ::: (view all by) ::: December 03, 2004, 07:17 PM:

"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.

#40 ::: TomB ::: (view all by) ::: December 03, 2004, 07:52 PM:

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.

#41 ::: Kimberly Chapman ::: (view all by) ::: December 03, 2004, 08:07 PM:

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: but had to stop due to lack of time to do it properly.

#42 ::: enjay ::: (view all by) ::: December 03, 2004, 08:18 PM:

Tort reform: never having to pay your victims.

#43 ::: Andrew Case ::: (view all by) ::: December 03, 2004, 08:31 PM:

"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.

#44 ::: DonBoy ::: (view all by) ::: December 03, 2004, 08:33 PM:

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!"

#45 ::: Teresa Nielsen Hayden ::: (view all by) ::: December 03, 2004, 08:37 PM:

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.

#46 ::: Grant ::: (view all by) ::: December 03, 2004, 08:42 PM:

A plug for PR Watch and Disinfopedia seems appropriate.

#47 ::: Jonathan Vos Post ::: (view all by) ::: December 03, 2004, 08:50 PM:

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).

#48 ::: Greg London ::: (view all by) ::: December 03, 2004, 08:59 PM:

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...

#49 ::: Graydon ::: (view all by) ::: December 03, 2004, 09:17 PM:

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.

#50 ::: Randolph Fritz ::: (view all by) ::: December 03, 2004, 09:22 PM:

"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."

#51 ::: Graydon ::: (view all by) ::: December 03, 2004, 09:45 PM:

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.

#52 ::: Greg London ::: (view all by) ::: December 03, 2004, 09:59 PM:


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?

#53 ::: Trent Goulding ::: (view all by) ::: December 03, 2004, 10:03 PM:

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.

#54 ::: Teresa Nielsen Hayden ::: (view all by) ::: December 03, 2004, 10:31 PM:

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?

#55 ::: fidelio ::: (view all by) ::: December 03, 2004, 10:49 PM:

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!

#56 ::: Kate Nepveu ::: (view all by) ::: December 03, 2004, 10:58 PM:

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.

#57 ::: Laurie Mann ::: (view all by) ::: December 03, 2004, 11:09 PM:

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:

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.

#58 ::: bad Jim ::: (view all by) ::: December 03, 2004, 11:14 PM:

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.

#59 ::: Ariella ::: (view all by) ::: December 03, 2004, 11:30 PM:

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.

#60 ::: Steve Gillett ::: (view all by) ::: December 04, 2004, 12:09 AM:

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".

#61 ::: Betty ::: (view all by) ::: December 04, 2004, 01:37 AM:

From War Room today:

"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.

#62 ::: bryan ::: (view all by) ::: December 04, 2004, 02:33 AM:

the weakness tax.

#63 ::: Jordin Kare ::: (view all by) ::: December 04, 2004, 02:51 AM:

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...

#64 ::: Sally Beasley ::: (view all by) ::: December 04, 2004, 02:59 AM:

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.

#65 ::: Nancy Lebovitz ::: (view all by) ::: December 04, 2004, 03:52 AM:

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.

#66 ::: Avram ::: (view all by) ::: December 04, 2004, 05:37 AM:

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?

#67 ::: Mris ::: (view all by) ::: December 04, 2004, 07:21 AM:

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?

#68 ::: Jill Smith ::: (view all by) ::: December 04, 2004, 07:41 AM:

Mris: Is it that ordinary people have a hard time conceiving of $2.6 million not mattering?


#69 ::: Rebecca Borgstrom ::: (view all by) ::: December 04, 2004, 07:44 AM:

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.

#70 ::: Epacris ::: (view all by) ::: December 04, 2004, 09:33 AM:

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.

#71 ::: Nancy Lebovitz ::: (view all by) ::: December 04, 2004, 10:50 AM:

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.

#72 ::: Charlie Stross ::: (view all by) ::: December 04, 2004, 10:57 AM:

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?

#73 ::: xeger ::: (view all by) ::: December 04, 2004, 11:10 AM:

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 me 10" method than the "drop your pants and get 10" method) - but not at all in favour of suspend/expel.

IMNSHO there's a great deal of value in the "negative action - negative consequence" link - and getting several days off of school when you don't want to be there is positive reinforcement of negative behaviour.

[0] Any form of punishment on whim being bad, but that's not the question.

#74 ::: Graydon ::: (view all by) ::: December 04, 2004, 11:25 AM:

Charlie --

Well, for starters, we could take the requirement for maximizing immediate profit -- only formally put in place in the early 1970s -- away, in favour of some language about 'reliable profit'. (Those being the two general class of choices.)

Since limited liability corporations are fundamentally a way to get out from under the constraints of government, the other useful thing is to formally remove civil rights from them. (Economic rights, like right of contract, but no rights of free speech, free assembly, or representation, on the quite suitable grounds that the corporation does not and can not fulfill the civil obligations of a natural person. There is also (I believe) a good case for restricting things like copyright and patents to natural persons in ways that do not permit institutional control.)

Shifting the basis of taxation to something other than money would be good, too; I favour environmental use fees (x Euros per ton of sulfur dioxide, etc.) but there are other approaches.

Fundamentally, it's all about the survivial of government. (Noticed how 'pro-business' really means 'anti-government' these days?)

Persuing long term self interest doesn't work -- no one knows what that is. Avoiding detriment to your self interest does work, but the distinction is sometimes difficult to convey.

#75 ::: Jules ::: (view all by) ::: December 04, 2004, 12:07 PM:

I have to say that I feel that those of us over here in Britain have a rather good civil legal system, which does seem to lack many of the problems being discussed here.

We have the system suggested above where costs are given to the losing side when the judge feels that the case was one-sided enough to merit it (in closely balanced cases, each side should end up paying their own costs). Costs are also strictly limited by the civil procedure rules at levels that mean they should not become a hgue burden for the loser of the case. This has not stopped "conditional fee" arrangements becoming available that enable you to get a lawyer to represent you for free who will not take a penny out of any award you are given, only out of a costs order. Obviously these lawyers are careful what cases they take, due to the fact that if it is not a clear cut win for them, they won't get paid.

Punitive awards are only granted in extreme circumstances, and are typically quite low compared to US cases.

Access to the system is simple; as long as you're halfway competent, you don't need a lawyer to make a small claim (under GBP 5000), although speaking to one to make sure you have a case (to avoid be landed with the other party's costs) is advisable. You can usually get such a consultation free. Fees are quite low, too, and are dependent on the value of the claim you are making.

Those on low incomes are exempt from paying court fees. I'm not sure how this works if they lose and have a costs award made against them, though.

If you folks were to "reform" to a system like this, I would see that as a good idea. I don't see the benefit in capping claims at arbitrary values, though. It fails to take into account that some people really do deserve that much.

#76 ::: Steve Gillett ::: (view all by) ::: December 04, 2004, 01:02 PM:

Actually, asbestos in general is an example of where the system has run amok. I don't know the details of James Hardie, but I do know something about asbestos itself:

(1) Not all forms are equally dangerous. Chysotile is much less dangerous than tremolite and other amphiboles. But, at least till recently, the Law just lumps "asbestos" (which is actually an industrial term, not a mineralogic term) all together, irrespective of mineralogy or grain size.

(2) No form is dangerous in bulk. The danger comes from finely broken fibers, mostly though inhalation, but perhaps through prolonged skin contact as well. The people at risk were those who came in contact with tiny _fibers_ routinely, through cutting, grinding, or whatever, or though installation of aerosol or slurry-based insulation or fireproofing.

Asbestos siding, shingles, etc. are not only perfectly safe, they're fireproof. That's why asbestos was a wonder material up through the 50s! After all, things _burning_is a serious hazard, too. But once you fan up hysteria about Asbestos, then suddenly _all_ forms of asbestos become potential liability-fodder, even if they're perfectly safe where they are, and even if replacements are both expensive and not as fireproof.

This _is_ the sort of thing that makes grist for propaganda about Greedy Trial Lawyers. It's also created an artificial market for asbestos removal; perhaps an example of Greedy Corporations exploiting fears fanned up by the Greedy Trial Lawyers.

There was a popular article in _Scientific American_ about asbestos a while back (Alleman & Mossman, Jul 1997), if anyone's interested. It talks about some of these issues.

Anent frivolous lawsuits: I do have trouble with the notion that people should get something because they got hurt through their own stupidity, carelessness, or whatever. A very open-ended principle, that: what about the people who impoverished themselves betting on the dot-com boom?

But for some more traditional examples. I live outside Reno, Nevada (where yes, businesses have been fleeing to from California--but that's another story). Although a reasonably good-sized urban area (maybe 350,000 or so, including all the outlying areas), it lies on the edge of some of the wildest country left in the lower 48. It ain't Disneyland, but every year a few people manage to die treating it so.

Several years ago a couple of California visitors died of burns resulting from diving into a hot spring on public land near the Black Rock Desert north of town. Now, to get to the spring in question requires driving 50 miles on _dirt_ roads, the last 5 or 10 of which are 4wd trails--without a pickup or SUV you won't make it. (You might not make it even then if the playa's wet.) Nonetheless, the survivors had the effrontery to try to sue the BLM (Bureau of Land Management) for not warning them of a (natural) hazard on wild lands. In a burst of common sense, it _was_ laughed out of court, but the BLM has put up some billboards along I-80 earnestly warning people to "stay out of hot springs on public lands." Somehow that just seems obvious, and (to be really Politically Incorrect) those who don't realize so are proper candidates for Darwin Awards.

Back around 1990, during a major winter storm that shut down all the roads in or out of the area, an out-of-town couple with a baby decided They Were In a Hurry and Couldn't Wait. So they decided to bypass the main roads (!), and of course got stuck. They were fortunate; as I recall they lost some fingers and toes to frostbite, but they--and the baby--survived. Then, they tried to sue the state for not warning them that the back(!) roads were dangerous(!!). Again, it was laughed out of court, but last I heard these t/w/i/t/s/ people managed to sell their story to a movie studio. For all I know some silly made-for-TV was based on the story. (I do feel sorry for the baby; not only the epitome of an innocent bystander, but obviously a big loser in the Ancestor Lottery, too.)

(Just a note for those from out of the area: northern Nevada is a steppe desert cut by a large number of north-south mountain ranges. It gets _cold_ here. Sometimes the area outside Reno would work fine as a set for Dr. Zhivago. My yard is covered with 6 inches of snow even as I write.)

A couple of winters ago some folks managed to get stuck on a little road somewhere off I-80 about 100 miles east of town, and (as I recall) one froze to death. The Pershing County Sheriff's reaction was, "well, yes, it was tragic, but no one _made_ them go out there." (No sign on the road saying "If it's cold and you get stuck and you don't have the proper equipment, you could die!" Given the other demands on public funds, there's not likely to be, either.)

I'm an experienced and reasonably competent outdoorsman; a time or two I've managed to get myself into potentially life-threatening situations (I was actually pulled out by Search & Rescue once when I was in my teens), but otherwise I was well-enough prepared to get out by myself. (One session ended in a fun-filled session at the ER in Reno on Memorial Day, but that's again another story.) In any event, it would not occur to me to blame anyone else for a situation that was _my_ responsibility. (To be sure, if I tried I suppose any opposing attorney could rightfully say, "This guy's been mucking around in the Nevada desert since he was a kid and he certainly _should_ have known what he was doing." To which I could only agree.)

Finally, about breaking your neck while diving: California has earnestly made diving in state waters "illegal." Not only is it basically unenforceable (somehow the few park rangers that California can still afford probably have more important issues to work on), but it's hard to see what difference it makes. Does having someone become incapacitated because they were doing something that was illegal, rather than merely gratuitously stupid, somehow absolve the public of that alleged moral responsibility toward them?

One last observation (though the tale has certainly grown in the telling--sorry about that). There are lots of ski resorts in this area, some in Nevada, most in California, and their existence shows that, if enough people want it, legally enforceable waivers of liability can exist. Every year a couple of people in the area manage to kill themselves skiing or snowboarding, and numberless others manage to hurt themselves seriously, and if the resorts were subject to the same risk of lawsuits as are many other activities (recreational and otherwise), they'd go under in an instant. Somehow that disclaimer on the back of your lift ticket really means something. (I'm an enthusiastic if rather putzy skier, btw.)

Folks, the Gummint and/or Society and/or whoever can't save you from yourself. Reality is too complicated and too multifarious and--perhaps fortunately--people themselves are just too fundamentally ornery. A society ultimately has no choice but to foster individual responsibility, because reality is ultimately self-enforcing.

#77 ::: Kimberly ::: (view all by) ::: December 04, 2004, 01:16 PM:

Great post.

On preventing frivolous litigation: We have court rules, loads of them, that are meant to do just that. Early motion practice, later motion practice, offers of judgment and/or mandatory case evaluation (with actual fee shifting for rejectors), dismissal with sanctions (on the party and/or the attorney), ethics complaints and bar suspension, etc. The rules just need be enforced, with teeth, in every court room across the land. That would undeniably be to the benefit of the attorneys (plaintiff or defense) that do their jobs thoroughly, honestly and with great care, and to the detriment of the greedy lawyers giving us all a bad name.

The reason the "tort reform" pushers aren't shouting "enforce the court rules" from the roof tops? Because those same court rules prohibit dilatory and abusive discovery tactics, frivilous motion practice, and misleading the court on either fact or law. The giant law firms representing the giant corporations are, in fact, equally if not more egregious in their abuse of the rules meant to ensure orderly, efficient, timely and fair litigation of any case.

#78 ::: Kimberly ::: (view all by) ::: December 04, 2004, 01:29 PM:

and on class-action litigation, including asbestos litigation--there of course certainly ARE greedy plaintiffs' class action lawyers, just as there ARE competent, ethical members of the defense bar (I count myself among them). There definitely is a growing industry in "file and settle" plaintiffs' class actions (in prods liability, and especially in antitrust), in which the plaintiffs' attorneys get rich b/c the defendants settle out of fear of treble damages or punitives on a class-wide basis, and the plaintiff class itself gets coupons. Or $12.00 each.

I would suggest, though, that the reform that's needed is in the set of rules governing class actions, not in damage caps.

#79 ::: Randolph Fritz ::: (view all by) ::: December 04, 2004, 01:35 PM:

"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 ..."

This wasn't something I commented on originally, but I do have a few thoughts on it; generally I think there are more than one sorts of conservative. The types who want to conserve class hierarchy of course want the lower classes as uninformed as possible. The religious radicals will only accept a school system if the churches run it. And don't forget the "spend no pennies" school of conservatism. On the other hand, the vast majority of conservatives and moderate religious now favor public school systems. It wasn't always so; Oregon got a public school system partly because the Klan wanted to weaken the Catholic schools.

#80 ::: Patrick Nielsen Hayden ::: (view all by) ::: December 04, 2004, 02:59 PM:

"Folks, the Gummint and/or Society and/or whoever can't save you from yourself. Reality is too complicated and too multifarious and--perhaps fortunately--people themselves are just too fundamentally ornery. A society ultimately has no choice but to foster individual responsibility, because reality is ultimately self-enforcing."

Yes, that's what this whole thread is about, expecting "gummint" to "save people from themselves." Also, nobody around here has thought for a moment about the virtues of "individual responsibility." Are you thinking when you type stuff like this?

I'm all for "individual responsibility." I'd like to see some displayed by the managers and owners of enterprises that crap on bystanders from a great height. Unfortunately, this kind of boilerplate "individual responsibility" talk generally means only the non-corporate variety of individual ought to be burdened with any responsibility. If I get sick because Taco Bell sold me a spoiled fish taco, it's my fault for not being careful enough to have examined it more closely; but if a jury hits Taco Bell up for punitive damages, it's somehow not Taco Bell's fault for having been incautious enough to serve spoiled food. In the brave world of "individual responsibility" from which the lectures like this emit, the biggest poor-me crybabies, the first to demand that society coddle them from the consequences of their mistakes, are the wealthy and powerful. Boo hoo. Poor us. Help us, wail wail, oh do. (Never mind that the entire apparatus of the "limited liability corporation" is already a gigantic giveaway extended by society to certain individuals in order to increase their scope of possible action. It's not enough. Nothing is ever enough, nor will be, until they have all the rights and power and everybody else has none.)

I agree very much with Jordin Kare that the actual issues at hand are complicated and that reforms are in order in several different directions. I sympathize with small businesses that feel more exposed than they can cope with. I don't think it's an entirely simple issue. I also note that the cases of abusive lawsuits being cited have nothing whatsoever to do with failures of a sense of "individual responsibility." They're just attempts at plain old fraud. The moral lecturette is unecessary and offensive. Individual responsibility: a good thing. Let's have some.

#81 ::: Paul Arezina ::: (view all by) ::: December 04, 2004, 03:10 PM:

"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.", wait. They ran on a platform of schools being choked down under bureaucracy, and then proceeded to eliminate... anything _but_ bureaucracy?

I can feel my mind going, Dave.

And as an added super extra bonus, I can't figure out at all now whether the eight kabillion spams with various misspellings of "Vioxx", "million", "make", and occasionally "on", are:

1) Actually greedy lawyers who want more paying clients.

2) Joe jobs by the tort reform lobby to make people think greedy lawyers want more paying clients

3) DDOS-me-own-server Dibbler, who has nothing to do with either side but knows money when he sees it.

#82 ::: Magenta ::: (view all by) ::: December 04, 2004, 03:24 PM:

My personal opinion of Where Corporations Went Wrong is when they could own other corporations. It's fine that Bill Gates can go into business without worrying he will lose everything, and his parents house too if his idea doesn't sell. But if Bill Gates is successful, he shouldn't be able to buy up his competition, for example, or his suppliers. Drive the competition out of business, maybe, if his product is that good. It's the multi-national mega-corporations that are doing most of the harm.

Giving corporations more rights than individuals is a big mistake as well. This was the result of some obscure railroad case, but I can't remember the exact date or case.

#83 ::: Charlie Stross ::: (view all by) ::: December 04, 2004, 03:35 PM:

Paul: it's not just the Canadian conservatives who used this tactic.

In the UK, Maggie Thatcher had a hard-on for the public sector in general, but didn't dare go after the National Health Service openly. (Given a choice between keeping the NHS and the Queen, most Brits would become republicans in a split heartbeat. Suggesting that it would be a good idea to privatize the NHS would be as popular in the UK as suggesting in the US that it'd be fine and dandy to sell off the US Navy to the highest bidder.)

Anyway, back in the old days (of the 1970's and early 80's) the NHS was an administrative jellyfish -- medics received funds and spent them as needed, period. A typical regional health authority would have at most couple of hundred clerical staff covering a territory with a couple of million users of the healthcare system.

To deal with the NHS, Thatcher first starved it of resources for a decade; then she and her heirs declared a crisis, announced their intention of tackling it, and installed a tier of expensive private sector management consultants. Some parts were being fattened up for partial privatization by 1997, when Labour got voted in (on a platform that included "fix the NHS" as a major policy plank). Since then, NHS funding has been growing at about 7% per year, compounded, and there've been cuts and streamlining in the bureaucracy: they're in the process of doubling overall NHS funding (taking a decade to do so) just to return the service to the level it would be at if projected in a straight line from 1979. (The cumulative shortfall is measured in large fractional terabucks.)

One of the side-effects of the late conservative "reforms" was that deaths due to MRSA are running at around 2000/year in British hospitals -- they out-sourced the cleaning jobs to the lowest corporate bidders, forgetting that hygeine in hospitals is a core competency without which people will die. It's now costing millions (and making headlines) as they try to get the hospital service back into the pre-partial-privatization world and get the nursing professionals who run the wards back in charge -- instead of MBA-wielding suits who don't understand the fundamental requirements of healthcare.

So it's not just the Ontario Conservatives ...

#84 ::: Jack V. ::: (view all by) ::: December 04, 2004, 03:45 PM:

No objection to much of your post, but isn't this an unwarranted inference: "Common Good is a corporate-funded organization whose entire purpose is deception and the spread of disinformation."

How do you know that it is corporate-funded? It may be, for all I know, but there's a bit of sleight of hand in the watchdog group's description that you quoted immediately prior: "Common Good, described in Mondayís front page New York Times story only as ďan advocacy group . . . dedicated to changing what it calls the lawsuit culture,Ē was founded by corporate defense lawyer Philip K. Howard, the Vice Chairman of Covington & Burling. This leading corporate defense firm represents many of Americaís largest corporations . . . ."

So, the law firm as a whole (NOT Philip Howard himself) represents a bunch of major corporations. But that doesn't say anything whatsoever about whether those corporations actually provide funding to Howard's side project. It's a non sequitur. Maybe they do, and maybe they don't; on the information provided, you can't tell.

Moreover, when I look at Common Good's advisory board, I see several conservatives, but also some lefties (most prominently George McGovern, but also Griffin Bell (Carter's choice for attorney general), Eric Holder, and probably others). What makes you think that their "entire purpose is deception"? Mightn't they have other, good-faith purposes in mind at least some of the time?

#85 ::: Trent Goulding ::: (view all by) ::: December 04, 2004, 04:03 PM:

I apologize for two things: mispelling your name and not double-checking it before posting (I usually do), and not being more careful to make clear that my summing up line was more in the nature of a general observation than directed at you and your post in specific. Mea culpa.

#86 ::: Adrian ::: (view all by) ::: December 04, 2004, 04:12 PM:

Charlie makes a good point about regulation. In the US, there are a whole bunch of arguments against regulation from people and organizations I used to think of as conservative (before the word "conservative" was co-opted by neo-barbarians and control-freak religious fanatics.) I'm thinking of the libertarian free-market sorts, who thought it was dangerous, as well as hideously expensive, to have the government making too many rules up front. If a builder wanted to build a tiny little house, and a short person want to buy a cheap little house, they might come to some agreement that would make them both happy without the government making rules about minimal ceiling heights so tall people don't bump their heads.

In the real world, people really do need to make some accomodations for each other, especially if large numbers of them are going to live together in anything like peace. For members of a small group, empathy and the desire to maintain a good reputation are often enough incentive for accomodations. But that falls apart for large groups. Relatively few people will limit their behavior much for the sake of faceless masses. The rule of law, or some other incentive, can work. The argument set I'm thinking of says that people, and especially corporations, will behave responsibly in order to avoid lawsuits.

This is supposed to be more flexible than making them behave responsibly via government regulations, and it can make them responsible to *everyone*, not just a handful of overworked government agents (who might be corrupt, anyhow. Who trusts the government?) One problem comes from assuming that everyone hurt by irresponsible behavior has similar power to sue. People who are poor, or inarticulate, or intimidated, are rarely effective advocates for their own interests -- it's part of government's job to protect them. Another problem comes from using lawsuits as blunt instruments, suing everyone who came near a bad situation rather than trying to determine exact details of responsibility.

After more than 20 years of seeing arguments that fear of lawsuits are better than regulation, it's especially scary to see arguments that corporations shouldn't be afraid of lawsuits.

#87 ::: Marilee ::: (view all by) ::: December 04, 2004, 04:33 PM:

When I had a personal-injury suit, I went to a well-known local law firm that has a license in Pennslyvania. They listened to me and decided it would be too hard to win. So I took a day off from work, drove to PA, filed the suit myself. The company settled very nicely, if all I'd ever had was the badly-broken ankle. Who could predict it would precipitate renal failures, strokes, gout, etc. etc.?

#88 ::: Jonathan Vos Post ::: (view all by) ::: December 04, 2004, 04:53 PM:


I thought that:

"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)."

both explained why I posted, gave some emotional insight, and provided a useful buzzword that I had not yet seen in the thread.

Of course, I could be wrong.

#89 ::: REM ::: (view all by) ::: December 04, 2004, 06:40 PM:

Kimberly made all of the points I thought of above, so I'm left only with a question: IIRC, New Zealand did away with tort law in the 1980s by shifting to the system the U.S. uses for workers compensation (e.g., someone drops an anvil on your foot, and you get fixed compensation from the government; you don't get to sue the anvil-dropper or his employer). Does anyone know if I'm in fact recalling this correctly, and if so, how it's working out in practice for the Kiwis?

#90 ::: inge ::: (view all by) ::: December 04, 2004, 07:19 PM:

The US tort system was an alien lifeform from some far-off planet to me since I heard the first anecdotes about it 6th grade, so if I'm sounding completely clueless here, it's because I am.

I am not sure if any this is on-topic, much less useful to the discussion, but I feel the need to share my confusion. Maybe one or the other morsel of information will appear during the discussion and make things clearer.

A company I once worked for had this policy about a certain product, "We're selling this product in the US, so everything about it is stricly need-to-know, or we might get sued", when every other product was discussed by everyone from the engineers to the secretaries around the coffee-maker. (Ironically, I was doing Quality Control, but I wasn't in the need-to-know group.) Might have been a bugbear, the outgrowth of rumour and paranoia, but I'm sure it didn't do the product in question any good.

I used to be a foreign member of the German branch of an American non-profit-organization. To conduct some organizational business for the club I needed proof of insurance. It was impossible to get. What I got after two years was the info that nobody was allowed to have a look at the insurance info because of fear of lawsuits. So I got a local insurance to cover the risks. Years later I heard that all the insurance did was to cover the club's directors' backsides from ligitation, but would not pay for a broken window in a room rented by the club. Does any of this make any kind of sense, or does it sound, again, like some bugbear? What it led to, however, was leaving the person lowest on the totem pole with the bills.

Finally, the tobacco lawsuits: From what I it it sounded as if the plaintiffs claimed they didn't know that smoking was addictive and harmful. How is it possible not to know? In the early 70s at latest there were data in abundance that smoking significally raised your chances to die a premature and ugly death. Like driving 150 mph on the Autobahn: You didn't do it for your health, but because you found the risk worth it. So, if the tobacco companies said, "Smoking is harmless", I'd get that you would sue them for lying to the public, if lying to the public was illegal. But claiming you believed them? I'm probably getting a seriosly skewed picture of the whole thing.

And there's also the other side of things - I do not know how common that one is in the US: A lawyer threatening to sue an individual on behalf of a company, unless said individual pays the lawyer a significant fee (preferrably within the next two days). The fee is always just a little less than getting a lawyer and fighting it (assuming you could get a lawyer in only two days). Things like this lead me to believe that people are so willing to believe in "frivolous lawsuits" not because they pity multinational corporations, but because they fear frivolous lawsuits to be raised against them, for the most phony of reasons.

But now to something completely different: Re: Betty's post about "Our leader". Could someone please tell me that these billboards a) are set up by the opposition, b) are a hoax, or c) the whole thing is some kind of deeply ironic postmodern commentary using deconstruction of historical analogy to raise awareness of something far beyond my ken? Because if I quote this without mitigating context, I'll get accused of Anti-Americanism.

#91 ::: Steve Gillett ::: (view all by) ::: December 04, 2004, 07:23 PM:


I'm not sure where or how I implied that corporations should _not_ be responsible. I _was_ responding to the point made up-thread about being smart enough not to spill hot coffee on ourselves. There are things that are just not a corporate entity's fault. Yes, Taco Bell should not sell spoiled tacos. But no, the BLM is not responsible for your jumping into a hot pool on public land. My point was simply that there is a disturbing trend to offload _all_ the responsibility onto some corporate entity, to the point where purportedly serious lawsuits are filed that are beyond the borders of common sense. It would be difficult to find a way better to play into the hands of those who advocate tort reform for nefarious purposes.

And if that strike you as a "moral lecturette", sorry, but so be it.

#92 ::: Dave Holander ::: (view all by) ::: December 04, 2004, 07:36 PM:

Can I sue McD's because their coffee sucks?

#93 ::: Chris Quinones ::: (view all by) ::: December 04, 2004, 08:00 PM:

Magenta: the case you mention is Santa Clara County v. Southern Pacific Railroad Company, 1886. The link is from a noted critic of corporate personhood, so salt to taste.

#94 ::: Jonathan Vos Post ::: (view all by) ::: December 04, 2004, 08:01 PM:

Charlie Stross:

History of Captalism 101, should such a textbook exist, would have a chapter on the USA circa 1800. It would foolishly fail to reference Neal Stephenson as a prequel. But, restricting ourselves to USA 1800 for now...

There were under 300 corporations. One needed to petition a state legislature to create one for you. Then, for reasons complicated to explain in detail, but easy in summary ($), the State of New York legislated a bypass of the petition process, allowing incorporation by mere civil filing of certain documents.

Corporations multiplied like rabbits. With quickly raised money, roads were built. The idea spread next to Massachusetts. Boston lawyers did well.

Canals were built by capital so raised. Now we've had 2 generations of transporation infrastructure created by the magic of cloning legal persons.

Next came the railroads. The "West" was "won." The airlines, ditto. Private spaceflight corporations will bring us, you know, The Man Who Sold The Moon.

The case can be made that the legal fiction which you feel was a wrong turn was essential to the growth of the American Empire. Or, as McLeod calls it, FU2.

Now, I've worked for many big corporations, and found that many of them, ethically speaking, were ongoing criminal enterprises. But that's some kind of 3rd order effect of easy incorporation.

I have been saying at SF panels for upwards of 20 years what the cure is. Software. Someone will write the killer app that automated incorporation so smoothly that the average Joe or Jane can create 3 or 4 corporations, and turn their hobbies into tax-deductible corporatations.

There is a great history in computing of the Pentagon and CIA buying bleeding edge technology (literally), which the big corporations then get, and profit mightily thereby. But then the small firms can do it. Eventually, a child can do it (but for the 18-year-old adulthood thing, which will be flattened beneath the gigacorporate behemoth).

Many individual lawyers incorporate in the USA. Ditto doctors. I say, don't go just partway. Let a billion flowers boom.

Then the pico-corporations use software agents on the web to do ecommerce. Soon, the corporations become a sea of trillions of entities, in which we all swim, luxurient in liquidity.

C'mon, you've more or less written this, right?

Given the nearly $20,000 non-mortgage indebtedness of the average American adult, a better case can be made that our wrong turn was in my birthyear: 1951. It's called the credit card.

Pause. Consider what happens when a billion Chinese people spawn corporations, and a billion Indians. The USA becomes a mere footnote.

Just my opinion.

#95 ::: Patrick Nielsen Hayden ::: (view all by) ::: December 04, 2004, 08:10 PM:

"My point was simply that there is a disturbing trend to offload _all_ the responsibility onto some corporate entity"

Yes, that's definitely the major "disturbing trend" of modern society. Which no doubt explains why business is so utterly powerless, completely shut out of politics, unable to enact any kind of agenda, CEOs selling pencils in the street, the commanding heights of the Federal government dominated by Ralph Nader and Naomi Klein. Because corporations get blamed too much. It's the Big Story! Darn, what we need is more people to take individual responsibility.

What complete and obvious twaddle this "disturbing trend" is.

#96 ::: Mary Kay ::: (view all by) ::: December 04, 2004, 08:43 PM:

While I agree with Jordin that it's a complicated and complex question, I'd suggest that his own personal experience isn't the best to cite. The person who brought that suit was, um, crazy. (Possibly paranoid schizophrenic.) No system can really protect you from crazy people. And very nearly all the so-called fixes which get proposed are worse than the situation being fixed. Any possible fixes should, in my view, be greeted with deep suspicion and tested thoroughly without their failures being irrevocable. If you see what I mean.

Teresa: In addition to the other explanations offered for why the conservatives want to destroy the public schools is that they don't control them. All too often those college educated liberals do. They're teaching our kids to think for themselves and question received wisdom! This will never do. And, of course, they dilute parental authority.


#97 ::: Madeleine Robins ::: (view all by) ::: December 04, 2004, 09:10 PM:

I wonder sometimes if the people who rail against "frivolous lawsuits" (and are not representing corporations) have ever been jurors for liability cases. I was, once. It was a small case, nothing like the McDonalds coffee case. But we had to decide, not only the liability, but the percentage of liability for each side. In the end we decided the plaintiff could reasonablly be held responsible for 15% of the accident in question, and the defendent for 85%. When I hear about a big award that has pundits shaking their heads and lamenting about the death of common sense, I wonder how much higher the judgement might have been...

#98 ::: Teresa Nielsen Hayden ::: (view all by) ::: December 04, 2004, 09:23 PM:

What? Offloading all the responsibility onto some corporate entity? Specifics, please. Some sourced statistics would be nice, too.

Frankly, I just don't see it happening. It'd be a more interesting question if I could think of one or two examples, but nothing's coming to mind.

Anybody here ever successfully offloaded their responsibilities onto a corporate entity? Anybody here know anyone who did? How about a friend of a friend?

Corporate entities are real, real good at getting out of things like that.

Now if you want to talk about corporate entities offloading their responsibilities onto private citizens, I've got some stories. We can start with "anomalous neurology case meets HMO" and go on from there. I wan't trying to get out of any responsibilities. I was trying to get diagnosed and treated so I could go on working. My HMO -- the one that was collecting money for providing me with medical care -- stonewalled me. They told me straight out that yes, there was definitely something wrong with me, but no, they weren't going to be pursuing the diagnosis, and I needn't expect they'd keep treating me forever. I didn't have a tape recorder or a lawyer with me. They knew -- as they were certainly in a position to know -- that I didn't have the resources or stamina to put up a fight over it.

You know what? Everyone I know who's chronically ill or disabled and has a life is a veritable monster of responsibility. They have to be; and that would be true whether or not their insurance companies and employers and physicians behaved as they should.

You know what that "take personal responsibility" BS is about? It's saying "You must have done something wrong in order for this to be happening to you," which of course is just another way of saying "That's never going to happen to me."

Guess what? It's just as likely to happen to you as to me, or Marilee, or Ray Radlein.

Where's the dereliction of personal responsibility in someone who bought Firestone tires and got maimed in a consequent auto accident? How were people who bought Pintos supposed to know about the interesting properties of their gas tanks? Women who got CU-7 and Dalkon Shield IUDs did so as an act of personal responsibility.

Only about one in eight victims of serious malpractice file claims. And if you think that constitutes shirking their responsibility, you haven't been through a prolonged lawsuit. Nobody would do that who didn't have to. Why do they do it? Primarily because (1.) they've been maimed, and (2.) the cost is staggering. No assumption of personal responsibility can cope with that.

I don't want to hear any more about Those People Out There. I want to hear about real people with real names. I don't want to hear any more cheap adjectives: spiralling, skyrocketing, epidemic. I want to hear real statistics.

If there's an epidemic of frivolous lawsuits going on out there, we should all know someone, or a few people, who've brought them.

Someone raise their hand? We're all waiting to hear.

#99 ::: Charles Dodgson ::: (view all by) ::: December 04, 2004, 10:32 PM:

For what it's worth, has been offering point-and-click incorporation (and management of the requisite Delaware maildrops, etc.) for something like five years now. That's made it a whole lot easier for independant consultants and the like to do things that they really should have been doing anyway, but it hasn't reshaped society yet, at least not that I've noticed...

#100 ::: Lenora Rose ::: (view all by) ::: December 04, 2004, 10:39 PM:

I thought the fact that there's an *impression* that there are staggering numbers of frivolous lawsuits was one of the things that Teresa was pointing out is caused by groups like Common Good. Right in the main post.

Yup. Section Three, What's Going On Here? Paragraph One.

So how did we end up back at this same point?

Nobody has denied that there have been frivolous suits. But the propaganda machine Teresa was talking about is all about playing up the Californians who believe they can dive into hot Springs, and playing down the suits about people widowed and orphaned, or crippled, because a corporate office didn't want to spend and extra few dollars. So that we hear about the latter cases, we assume they're all the former.

Evidently, it's working.

#101 ::: mythago ::: (view all by) ::: December 04, 2004, 10:45 PM:

Steve, that is called "contributory negligence." It is already a part of the law and has been for some time.

Teresa, a thousand blessings on you for posting this. I am a trial lawyer, and for all those whining about Those Darn Trial Lawyers, my salary is probably about half of what my colleagues on the defense side of the aisle make.

And by the way, the urban legends about lottery-jackpot awards turn around to bite big corporations in the ass. We not infrequently deal with clients who don't want to take very reasonable and fair settlement offers, or who insist they should get to roll the dice on a trial (where we are sure they are going to get their butts kicked) because somewhere, somebody put it into their heads that Lawsuit = Millions and Millions of Dollars Every Damn Time.

#102 ::: mythago ::: (view all by) ::: December 04, 2004, 10:47 PM:

Egads, I meant to say "comparative negligence."

#103 ::: Chloe ::: (view all by) ::: December 04, 2004, 10:54 PM:

tort reform: so obstetrics doctors can show up for work drunk weilding scalpals around babies

I've heard of that. I've heard of doctors getting away with it too, because there's no state troopers patrolling hospitals looking for drunken surgeons apparently.

I've never thought the McDonald's burned by coffee suit was "frivolous" exactly. But I never thought much about it at all until a couple of weeks ago when I got a mouthful of scalding hot cocoa in my mouth when I tried to just take a sip from an cup that had a lid that made it hard to "just sip", and the cup itself was far more insulated than I could've ever imagined, since had waited a good 15 minutes before even taking that first sip. And my tongue still doesn't feel right. And yeah, I noticed afterwards that there was an itsy bitsy teeny weeny fine print warning on the bottom edge of the cup that the contents were hot. Frankly, I think there should've been a warning in big red letters plastered on the cup saying "not safe for human consumption during the hours after purchase". This happened at a donut shop with an ice cream store attached to it in south Jersey. Not sure of the name of the donut shop, but it's a chain, and now I'm resolved not to buy anything in any donut shops now - Because I imagine a so-called "disposable" cup that is that well insulated wouldn't break down in a trash dump within the next 4 million years, let alone qualify as biodegradable, I would like to have my taste buds in working order, and I don't want to have to wait an hour or 2 to drink something I purchase on the go.
And frankly, I think I deserve some kind of punitive compensation just for being forced to spit out liquids abruptly in public in quite an undignified manner, let alone the damage to my culinary enjoyment for weeks. heh.
(PS: I would never gulp down liquids from a hot spring out in the wild. Hot cocoa to-go is sold expressly for the purpose of drinking, on the spur of the moment.)

I think JVP feels the bully story explains why people are eager to buy into the 'bureaucracy is bad' routine of the web site being critiqued in the post. I felt that was pretty germane, and even an illuminating anecdote as to why people buy into it.. That's not to say I have a lot of sympathy after the "PC Principal" remark. Makes it sound like the principal fired the teachers because they were racists, and if that was the case, I'd hardly call those teachers 'good teachers'.

I too am getting tired of the 'greedy trial lawyer' propaganda going around. (Not directed squarely at anyone in particular.) I'm not saying I don't think there are any 'greedy' lawyers, I'm saying that the sweeping generalizations are getting annoying. I think there's lot more basis for remarks about 'greedy insurance companies', but they don't seem to be quite as common in pop culture.

I have similar stories to tell, of myself and friends, that echos Teresa's "I wan't trying to get out of any responsibilities. I was trying to get diagnosed and treated so I could go on working." experience... where people don't/can't sue, and have legitimate grounds for it, and lose almost everything, because of doctors dropping the ball.

You know what that "take personal responsibility" BS is about? It's saying "You must have done something wrong in order for this to be happening to you," which of course is just another way of saying "That's never going to happen to me."

More resonant words, I've never heard.

I'd go a little further and say that people steeped in that denial, are also steeped in the belief that if something did happen to them through no fault of their own, they'd, of course, be able to handle it better than these "OTHER PEOPLE" who have it happen to them and can't seem to 'carry their own water'.

#104 ::: Larry Brennan ::: (view all by) ::: December 04, 2004, 11:27 PM:

Chloe - Sounds like you visited a combination Baskin Robins / Dunkin Donuts franchise. Both are part of the same conglomerate, Allied Domecq, so you can expand your personal boycott to include Togo's sandwich shops and a host of liquor brands such as Maker's Mark, Sauza and Mumm's.

Many people will tell you that you should have been more Personally Responsibleô with your beverage. I think that you should have immediately rushed over to the ice cream counter and plunged your tongue into the Rocky Road to treat your burns. ;-)

#105 ::: John Kelsey ::: (view all by) ::: December 04, 2004, 11:30 PM:

As far as handling disinformation campaigns, I think the most useful advice is to think through claims you read/hear/watch in news stories, ask a few critical questions, and get your news from multiple sources *who don't all agree with you*!

It's not enough to know who pays for the ads, though, and IMO, it ought to make you really uncomfortable when you get a story or explanation for some crisis that fits perfectly with your worldview, since the real world is usually messier than a story that's been put together for your benefit. That is, if I'm making a nice story for libertarians, I'll make unfeeling government bureaucrats and inflexible laws the cause of the problem; if I'm making a nice story for greens, it will involve greedy corporations and millionaire CEOs; if I'm making it for religious conservatives, it will be gays or (depending on the brand of religious conservative) members of other religions, or activist judges. In any case, the purpose is to tell a satisfying story that makes a nice, clear cut case of good vs evil, and stop any irritating thought processes that might lead to awkward questions in the reader's mind. ("Hmmm. So, if Big Oil is supressing the 200 MPG engine, why don't the Russians or the Chinese start building them?")

The other thing to understand is the enormous ability to get your voice heard that a reasonable amount of money and press savvy can get you. I gather that there's basically a whole industry devoted to spinning the media, and they're (IMO) smarter and better funded than the people doing the reporting. I always find it interesting to see the same basic story in five or six news outlets at once, clearly originating from a single source, and spun the same way in all cases. (I recall the airlines doing this with "air rage" a few years ago--one day, every paper and news show had to have an article on air rage, and what new powers the airlines needed to be given to deal with this crisis.)

Finally, I'm not convinced at all that there's no need for tort reform. The "scummy lawyers and irresponsible old ladies" bad guys are not all that much more plausible to me than the "scummy corporations and greedy CEOs," and I know people who have been affected by junk lawsuits, and at least one doctor who's very concerned about legal liability and defensive medicine. The problem is that it's such a complicated system, I'm worried whatever reforms we get will make things worse rather than better--especially since reforms are being championed by specific interests, who will benefit both from decreasing frivolous lawsuits and also from blocking some legitimate ones.


#106 ::: Graydon ::: (view all by) ::: December 05, 2004, 12:18 AM:

John -

You want to change tort law to serve what end?

That's a much better question than "this isn't perfect, so it should be changed, shouldn't it?"

The fundamental problem with any complex system is to get the scope of choice -- the number of states of the system you have to worry about -- down to a small enough thing that your brain can deal with it.

One of the standard ways of doing that so far as the behaviour of other people goes is to make them afraid. If you're afraid, you don't want to take chances, and you don't believe you can get a good outcome so you're less likely to do anything at all, and you're definitely more likely to hand over responsibility to someone who says that they can solve the problem.

(This is basic marketing -- identify or create an insecurity, then present the solution. Politics being taken over by creative marketing isn't a good thing.)

It's a complicated system because it must be a complicated system; if you have hundreds of millions of people, all busily exercising choice in a capable economy, the space over which the law must apply is huge.

Think about that, the next time you hit someone proposing aggressive simplification -- what they're really proposing is massive population loss or general poverty.

There are lots of ways to deal with complexity that work fine; they don't get applied, in part because managerial positions are extremely resistant to automation, in part because quill-pen-and-ledger methods are deeply embedded as everyone's notion of what the solution choice space is, and in part because the stuff that is appropriate to the complexity of the society and economy we actually have is unfamiliar.

#107 ::: Jonathan Vos Post ::: (view all by) ::: December 05, 2004, 02:10 AM:


Thank you. That was pretty much my point on the bully story. I did not object to the principal speaking Spanish at the first school. I rather liked it.

Reminded me of my joy at the multiculturalism of Brooklyn, New York, where I grew up. The intermingled mosques, churches, and temples; Middle Eastern food along Atlantic Avenue -- I miss those fresh lamb pies and spinach pies, and halvah carved off a TV-sized block, and huge barrels of aged olives. When I first moved off campus in Pasadena, circa 1970, I chose to move into the center of an Hispanic nighborhood. I liked the emphasis on family, and the way people would sit outside the apartments, and talk and play, on what we in Brooklyn called "stoops."

My wife didn't object to Mexican Heritage Month or Black History Month. She asked, and was granted, the chance to speak in some classrooms as a Caledonian-American, and explain the culture of Scotland. Our son got to dress up and do a one-man show as his great-great-great-uncle Sir Walter Scott. Another time, he played Einstein. Another time he played Harry Potter before the American edition came out. First kid in the school to have a flying broom, and explain Quiddich.

I honestly don't know why the new principal at my son's later school fired the three good teachers. Far from racist, they went quite far into fighting racism and promoting skepticism of all kinds. It's hard to untangle, because of a flurry of lawsuits by a local activist against the Pasadena Unified School District, which seems to be skimming several megabucks a year out of a quarter-billion dollar budget.

Some of the teachers took stands on this level of politics, not on racial or religious wedge issues.

Specific example: there is a party thrown once a year to entertain the vendors of book, pencils, paper, and the like. More money is spent on that party than on ALL books for the year. Hmmmmm.

I won't be stuck with a tinge of racism, after all the marches I went on in the early 1960s, or getting a play about the assassination of Medgar Evans produced at my Junior High School. My mother battled against racism and for feminism since the early 1950s that I could see, and maybe more before I was born. My portrait was painted by a famous suffragette, Betsy Reneau, the only white person she'd painted in decades. So thank you for being on the side of the angels.

#108 ::: Steve Gillett ::: (view all by) ::: December 05, 2004, 02:15 AM:

Um-- a "corporate entity" is an organization. Suing the government because you hurt yourself on public land is trying to offload your responsibility onto a corporate entity--what a lawyer friend of mine calls the "deep pocket."

That is a "real example"; I presented it in enough depth that it shouldn't be hard to Google the full story if you want to verify it--and I really don't understand why the concept seems to push such buttons ("twaddle" and other such reasoned responses). But that such reactions get elicited is itself of interest.

By the way-- From a discussion with my attorney many years ago I gathered that "fraud" is a very specific concept with specific legal tests (and no, the action I wished to initiate against someone wasn't "fraud," though it sure _seemed_ like it). Now, there are attorneys here who will know a h*ll of a lot more about this that I (and who I'm sure will be more than happy to set me straight :) but I would gather that an "abusive lawsuit" is _not_ fraud, in contrast to what Patrick said in his post above. Trying to dismiss them in this way just begs the question.

One more thing, w.r.t. that whole seemingly controversial concept of "individual responsibility"; if you go back and actually _read_ what I said, one of the notions I specifically took issue with was the idea that if someone gets hurt, even through some negligent action of their own, "someone" should pay. The specific example, _which was originally brought up by another poster_, was someone breaking their neck by diving into shallow water. So no, in contrast to what Patrick implied, this was not a red herring I gratuitously introduced into the thread.

#109 ::: pericat ::: (view all by) ::: December 05, 2004, 04:21 AM:

Steve Gillett:

That is a "real example"; I presented it in enough depth that it shouldn't be hard to Google the full story if you want to verify it

Not hard at all. Here's a pretty detailed account. It differs from your summary on all points except that someone died after being in a hot spring in the Black Rock, and the BLM was afterwards sued. The BLM later settled out of court for $5.2 million altogether ($1 mil to the dead woman's mother, $4.2 mil to the survivor, which appears to amount to the cost of his medical care to date, plus immediate future estimates).

Several years ago a couple of California visitors

There were four of them, and they were from Reno. Might not be close enough in Nevada terms to be considered 'locals', I don't know. They had been camping in the area, an acceptable practice, with their dogs, which also appears to be normal.

died of burns resulting from diving into a hot spring on public land near the Black Rock Desert north of town.

Only one died. The other injured person was still alive at the time of the settlement. They did not "dive in", in the sense of seeing an attactive pool of water and shucking off their clothes without testing the temperature. Their dogs dove in, though, and faced with the sight and sounds of their pets boiling alive in front of them, they attempted to rescue the animals.

Now, to get to the spring in question requires driving 50 miles on _dirt_ roads, the last 5 or 10 of which are 4wd trails--without a pickup or SUV you won't make it. (You might not make it even then if the playa's wet.)

As noted, they were camping in the area, rather than bee-lining in from the highway, expressly looking out for hot springs.

Nonetheless, the survivors had the effrontery to try to sue the BLM (Bureau of Land Management) for not warning them of a (natural) hazard on wild lands. In a burst of common sense, it _was_ laughed out of court,

It was settled out of court, not laughed out. And the suit named not just lack of warning signs, but lack of fencing, and one salient point was that there had been signage, but it was removed.

but the BLM has put up some billboards along I-80 earnestly warning people to "stay out of hot springs on public lands." Somehow that just seems obvious, and (to be really Politically Incorrect) those who don't realize so are proper candidates for Darwin Awards.

On the contrary, the area's hot springs are among a number which attract aficionados year round. Even this pool is one in which people can soak, though not in the source, where it's hottest, but in some sort of run-off. You do have to know something of these springs in order to soak in them safely, and it's worth noting that they do not appear to be hot just by looking at them. Someone who was unaware that the pool in front of them was supposed to be a hot spring would not twig to that fact until they felt the water.

The real questions have to do with how to balance safety education and warnings and protective fencing with proper concerns about spoiling the natural surrounds, which is one of the mandates of those who manage public lands.

But the real point so far as this thread is concerned, is that the incident as you remember it, is not at all what happened, nor were these people noticably more foolish than the normal run. And this seems to be common with unusual incidents that result in lawsuits; important details get lost as the anecdote is tightened up in the telling.

#110 ::: Randolph Fritz ::: (view all by) ::: December 05, 2004, 05:33 AM:

"As far as handling disinformation campaigns, I think the most useful advice is to think through claims you read/hear/watch in news stories, ask a few critical questions, and get your news from multiple sources *who don't all agree with you*!"

What, should I entertain arguments on why the earth is flat?

One must do one's homework; a source--a hundred sources--may just be flat wrong.

So you write "I'm not convinced at all that there's no need for tort reform". So then, are you are convinced that there is a need? Or perhaps that there might be? On what evidence? Lay it out! So far as I know--so far as I have ever seen credibly presented--the goal of the proposed reforms is to shield large, powerful organizations from responsibility. Do you have other reforms to propose? Or more credible evidence in support of them than has so far been presented?

#111 ::: Individ-ewe-al ::: (view all by) ::: December 05, 2004, 05:38 AM:

Epacris gave the following example: e.g. you jump into shallow water, become paraplegic/quadraplegic & sue the local council for not signposting the danger

This happens to be pretty much my brother's story. He became quadraplegic as a result of breaking his neck at a swimming pool. Nobody knows if he slipped or jumped; he doesn't remember and there were no witnesses. Either way a sensible person knows that the floor can be slippery near a swimming pool, just as much as a sensible person knows not to jump into shallow water.

Except he didn't sue. Everybody told him he should, and goodness knows he could have done with the money. At one point it was touch and go whether his insurance would cover his (emergency) treatment; he was in intensive care for upwards of a month and you think a $10 million dollar upper limit on accident payouts is a lot, but it's not, not in that sort of situation. His view has always been that the swimming pool staff saved his life because the lifeguards acted so promptly and efficiently, and he's not going to sue them for not putting clear signs about the dangers which he knew about perfectly well anyway.

The attitude of those who told him to sue was not that he should abdicate personal responsibility. The attitude was that the sums involved are so enormous that no individual can possibly cover them. Litigation is a way to share liability across the whole community; everybody pays slightly more into the system so that corporations (which may be huge and evil or small and cute, it doesn't matter) can take out liabilty insurance and the money can be there when there's a horrific but essentially unpreventable accident.

Another way of sharing out liability which has the same effect is to have slightly higher taxes which pay for a socialized medical system. As it happens, my brother was abroad when he had the accident. And thankfully, he was well enough to be flown home to the UK before his insurance money ran out (though the travelling set him back a long way and resulted in a further several weeks in intensive care; it might have killed him, but it didn't, as it happened). At that point the NHS took over his care so money was no longer a life and death issue. Now he's out of hospital he gets enough in welfare to get by, though his situation is far from wonderful either physically or financially.

I admire my brother for steadfastly refusing to sue. But had he done so, his story could have been represented as being about greedy trial lawyers, frivolous law suits, the compensation culture, failure to take personal responsibility etc etc. Or it could have been about the fact that he needed tens of millions of dollars for the essential medical care to keep him alive, and that kind of money doesn't come out of nowhere. Had he lived in a country such as the US, where healthcare is largely privatized, he might have been faced with the choice of suing or death.

#112 ::: Charlie Stross ::: (view all by) ::: December 05, 2004, 07:27 AM:

"Personal responsibility" ... "corporations" ... all this puts me in mind of a book I just finished reading, and which I'll strongly recommend to anyone interested in the underlying psychological issues: "The Man Who Shocked the World" by Thomas Blass (ISBN 0738203998, if you want to go digging on Amazon). It's a biography of Stanley Milgram, author of "Obedience to Authority" and designer of one of the two most fascinating (and controversial) psychology experiments of the past century.

The reason I'm bringing this up is because "personal responsibility" is repeatedly applied as a catch phrase to those people outside the corporate system -- but as Milgram demonstrated very effectively, people submitting themselves to an external authority (such as a corporation in which they work) invariably relinquish most or all of their personal responsibility to the organization. And organizations don't, as a rule, have the ability to harbour moral qualms.

Apparently Milgram's work used to be core material in business degrees taught during the 1980's that discussed business ethics. I wonder if it's been dropped from the syllabus since then?

#113 ::: Kathryn Cramer ::: (view all by) ::: December 05, 2004, 07:53 AM:

Something about Covington & Burlington sounded familiar from my researches the other day on the Pacific Legal Foundation and their project to have the Endangered Species Act thrown out by the courts. (PLF is, by the way, one of the organizations behind the Bush adminstrations' dismantling or protections for salmon runs.)

I'm really amused to see what the commonality turned out to be: both PLF and Covington & Burlington involved themselves in Nike v. Klasky, the suit over the "corporate right to lie," whether lies by corporations have the same First Amendment Protections as lies by individuals.

#114 ::: Greg London ::: (view all by) ::: December 05, 2004, 10:13 AM:

Steve Gillett:

I think the point is that there is real responsibility, and then there is the "responsibility" as used by "innocent corporations" to fight all these "frivolous lawsuits".

I don't remember if you were around for the great "framing" thread recently. We talked about the language used to frame an issue. Large corporations are trying to frame the issue of lawsuits into the language of "responsibility" which has a wicked, invisible undertow:

"It's your fault if you got hurt"

#115 ::: Kathryn Cramer ::: (view all by) ::: December 05, 2004, 10:41 AM:

On the subject of framing, the expulsion flow chart frames violent school situations as an Us vs. Them, our wonderful kids vs. their terrible kids. While it may be to a school administrator or a school district's advantage to frame issues that way, often the perpetrator and victim in a violent school situation have a fair amount in common. Case in point: After my sister made this post to her blog, generated in part by her upset that her daughter in pre-K had been attacked several times by an 8-year-old retarded girl who was sometimes put in the pre-K class, I pointed out to her that if it was obvious to the casual observer that Special Ed kids weren't getting proper services, then there was a real problem with the support being given them.

She did a little nosing around and discovered a number of interesting things: Most of the $40,000/yr that was being given to the district to educate this child was disappearing along the way. The girl had no curriculum. She was supposed to have an aide, but the district wasn't providing one. Etc.

Public education is supposed to be about providing education for everyone, not just those it is convenient to educate. Non-Special Ed kids can benefit in a number of ways from being in the same class as designated Special-Ed kids, as long as the proper (and often legally required) services are provided. For example, the addition of an assistant teacher to a classroom cuts the student-teacher ratio in half.

Isn't it rather cowardly for adults to be scapegoating children?

#116 ::: Kimberly ::: (view all by) ::: December 05, 2004, 10:58 AM:

I'm with Teresa. If you're going to convince me that "tort reform" is necessary, I want stats--percentages, full citations to cases, and reversal rates, too. Show me that there are so many frivolous tort suits brought in this country that are not dismissed, and so many frivolous recoveries, that the legal system has been brought to a standstill. I don't believe you'll be able to do it, because I think it is a fiction.

In order to assess how evil/misguided/dishonest the public relations campaign for tort reform really is, we need to distinguish between lawsuits that are "legally frivolous" (i.e., improper for the lawyer to file in the first instance, based on the facts and the law), and those in which the liability question could have gone either way under substantive law, and you happen to believe the court or jury should have ruled for the defendant.

We also need to distinguish between suits that were legally frivolous, and those that you personally believe, based on the facts of the case and regardless of the applicable law, should not have resulted in liability--i.e., suits in which you personally have a disagreement with the substantive standard for liability in that state.

Because that's what we're talking about when we are arguing about personal responsibility (my thoughts on which were expressed eloquently by both Teresa and Patrick). That you personally think someone shouldn't be allowed to sue does not mean that their claim is illegitimate under the substantive state law.

If you think the problem is "too many legally frivolous lawsuits," then argue for the consistent enforcement of procedural and ethical rules that can prevent them.

If you think the problem is, "Boy, tort law in [insert your state here] allows for comparative negligence and I think we should return to the days when a plaintiff's own negligence completely barred any recovery, even if the other side was negligent too," then lobby your state legislature to change the aspects of state tort law in question. I think you're wrong, but at least you would be tailoring your fix to what you think the problem is. And if the corporations did this--if they actually said "We don't think we should be liable, and we don't want to have to pay, when we [insert brazen corporate tort here]," well, that would be at least a bit closer to the truth.

Damage caps and the kinds of "tort reform" currently being bandied about by the current King and His Court do not efficiently address either of those (also, in my view, trumped up) concerns. In fact, imposing damage caps to inhibit frivolous lawsuits is frankly stupid--unless, of course, your actual target is not legally frivolous lawsuits, but rather lawsuits generally.

Damage caps make loads of sense if your goal is to inhibit the bringing of all claims, frivolous and legitimate, i.e., if your goal is to skirt the actual state tort law and thereby minimize your accountability for your company's mistakes and avoid internalizing the costs of the harms you as a corporation inflict on society.

Damage caps will also exacerbate the effects of an actual, documented problem with the legal system--the dearth of quality, affordable legal services. Addressing that problem would also help ease small business fears (which have been fanned by the big business campaign for tort reform) of expensive litigation.

Okay, that went on and on, didn't it? Sorry about the long post.

#117 ::: Greg London ::: (view all by) ::: December 05, 2004, 11:00 AM:

I think the overly-complex-flowchart for schools handling a problem student and the lawsuits-are-out-of-control are both frames that play off of the same human instinct:

complexity is bad

But this is an oversimplification. Legal systems and school systems both solve problems: injustice and ignorance. In solving the problem, the systems add extra complexity. Inside that extra complexity, it is possible for someone to "find a loophole" in the legal system or "slip through the cracks" in the education system.

People see an example of an outrageous lawsuit (or hear an urban legend about one) and say it's a result of the legal system, therefore the legal system should be scrapped. Award limits and "3-strikes" basically scrap the legal system that allow lawsuits for injured people to get some form of justice from the people who caused their injury.

People see an example of a bad kid slipping through the cracks of a bureaucratic flowchart, say its the result of the flowchart, and therefore the school system should be scrapped. School vouchers basically kill public education.

The problem as I see it is that progressives get sucked into the frame of "complexity is bad" and end up wasting a lot of energy.

The progressive frame for both these issues is that the system solves a greater problem. And to throw out the system because it is complex and not perfect is to throw out the baby with the bath water.

A progressive response to school vouchers, for example, should really put the spotlight on the fact that school vouchers effectively scrap the complexity of a fair public school system and replace it with a "I've got mine" simplicity.

School Vouchers: I've got mine and that's all that really matters

School Vouchers: because working together to create a good public school system is too much for me to deal with today.

The progressive response to "Tort Reform" should put the spotlight on the fact that it throws out the only system that allows a poor person to get justice against a mega-corp that caused them injury. And that it justifies scrapping the sytem because the system isnt perfect.

Tort Reform: Because the only people who use lawsuits are ambulance chasers and whiplash victims.

Tort Reform: Removing the burden of frivolous lawsuits by money hungry individuals so that corporations can focus on making the world a better place through fair trade

This framing won't convince everyone, but it might convince enough moderates to see that the frame currently being presented is effectively the same as "it's too complicated, it doesn't work perfectly, lets scrap the whole idea"

#118 ::: MisterBS ::: (view all by) ::: December 05, 2004, 11:06 AM:

It's a sure thing: when the words "personal responsibility" come out of the mouths of the "corporations-are-oh-so-victimized" shills, what they're really saying is responsibility solely to oneself, and entirely eliding responsibility for one's community, or enacting responsibility for oneself by collective action.

#119 ::: Nancy Lebovitz ::: (view all by) ::: December 05, 2004, 11:35 AM:

The Incredibles, a delightful movie which gets creepier the more I think about it, is interestingly incoherent about bureaucracy and who pays and such---superheroing is made illegal because of frivolous lawsuits, but it's also obvious that the only way to get decent medical care is to endrun the vile insurance company by taking advantage of obscure regulations.

#120 ::: Steve Gillett ::: (view all by) ::: December 05, 2004, 12:01 PM:

Thanks much to pericat for refreshing me with the details on the story. I did remember that it was the _dogs_ that jumped in first, but I--perhaps incorrectly--didn't see that as germane (trying to keep posting length down, after all). When I was there with my dog--in fact, in general when I'm in any area containing potential hazards with my dog (cliffs, mine shafts, etc.)--he's not running around. So, yes, the pets being boiled alive would perhaps trump clear thinking--but the pets shouldn't have been running around in the first place.

I did remember that the second person in the hospital died later.

And apparently the real version is even worse than I remembered. I did _not_ remember that the BLM actually paid out our tax dollars. So perhaps we can chalk this one up as a junk lawsuit that _worked_, huh?

I've been to the pool in question. (It's one of the Double Hot Springs, btw.) Several times (even camped there once). It does not look like an inviting body of water--it looks scary as hell, in fact. The water is so hot that there's not even thermophilic algae in it, and it's covered (along whichever edge toward which the wind is blowing) with dead moths that had blundered into the steam. To my knowledge there'd never been a sign, moreover, saying "scalding water" or some such, at least since 1996 when I first went there.

It's true that the hot springs in the back country are the targets of aficionados. But--good grief!--those are the sorts of people who should be _especially_ cognizant of the potential hazards. Just like my kicking around in the backcountry--I _should_ be a person who knows the risks and knows what he's doing. So again it's even worse than I remembered.

By the way, re fences and such: this is _wild_ country; in fact, it now lies on the edge of a defined wilderness area! I still don't think that the BLM, or anyone else, has an obligation to (in effect) turn the back country into a theme park, complete with warning signs and such.

Kimberley: I'm all for "consistent enforcement of procedural rules" if that will help fix things. How does that happen?

#121 ::: Greg London ::: (view all by) ::: December 05, 2004, 01:03 PM:


If you have some objective way of determining what is and is not responsible behaviour, then perhaps we can agree on something.

As far as I can tell, you've presented a number of examples of lawsuits and in hindsight rendered your subjective interpretation of the events that the inviduals were irresponsible. So you're saying "the jury was wrong. I'm right"

How do you design a legal system around that?

Otherwise, you're pointing out that the system isn't perfect. And I know it isn't perfect. But that's because it relies on subjective decision making, and there is no objective way to remove the need for subjective decision making, the need for a trial and jury.

If you have a proposed solution that somehow reduces the number of 'bad' claims without affecting the honest grievances, then lets talk.

But simply pointing out a problem in the system is not enough for me to say scrap it entirely.

Non-Sequitor: I wonder if "Tort Reform" proposals for award limits and 3-strikes-your-out approaches would also apply to corporations suing other corporations? Or does "Tort Reform" exclude any corporate litigation?

#122 ::: Steve Gillett ::: (view all by) ::: December 05, 2004, 02:18 PM:

To Greg London:

Well, first, I don't know that I ever advocated "scrapping the system." I presented reasons why tort _reform_ ("reform" being construed in its perfectly innocent dictionary definition, not as a code word for Nefarious Actions by Big Corporations) resonates among lots of people. I would like to believe that it's just a matter of consistently enforcing extant procedural rules, but I must admit to some skepticism there.

As for my "subjective opinion"--well, all I can say is that it's widely shared. In the case of the Black Rock spring, for example, the area is widely known, and popular sentiment was decidedly negative toward the individuals involved. I believe, also, that there are legal standards for "rational behavior", depending on the level of knowledge that should have been possessed by the individuals involved, and that's what seems to be missing here--particularly in the light of the additional information pericat tracked down. For example, I _know_ there are different standards for chemical reagents, which I believe goes back to their not being "consumer products." Any reagent bottle will have boilerplate that it's only to be used by competent personnel and to refer to the MSDS (Materials Safety Data Sheet) for details. If I poison myself in my lab at the university, it _is_ my responsibility, because I'm supposed to be a competent professional. Conversely, if Joe Blow gets hold of a reagent and poisons himself, the boilerplate is supposed to protect the reagent company because the label _says_ that the compound's only to be used by trained personnel.

As for "jury trials"--again, I don't believe I ever said to scrap them. To get back to the issues with small businesses, though, often settlements are made out of court simply because the business can't afford to do otherwise. It never even _gets_ to a jury, and if it does there's no guarantee that you won't still have to pay all the legal costs even if you win. So yes, that _is_ a problem. I don't know how to solve it--but problems have first to be recognized before solutions can be contemplated. Someone upthread said that in Britain the loser _does_ pay the legal costs, which seems sensible to me.

And as for quantifying all this--I think that's a great idea. Didn't Heinlein once quip that analysis without numbers is just opinion? I'm sure that small business organizations, AVMA (American Veterinary Medical Assn), AAHA (American Animal Hospital Assn), and many others have lots of data on legal costs to their members. I suppose, however, that one could accuse such organizations of being biased sources.

#123 ::: Teresa Nielsen Hayden ::: (view all by) ::: December 05, 2004, 02:28 PM:

Steve, I want to point out a gross statistical improbability. There are all of these stories in circulation about personal-injury lawsuits. When examined closely, almost none of them turn out to be accurate. The only reason I say "almost" is because I can't be sure that I've seen all of them.

When thus examined closely, and found to be inaccurate, it almost always (vide supra) turns out that the story has severely exaggerated the victim's contributory negligence and/or the stupidity of the jury and/or the size of the award.

If what we're looking at here is the normal innocent folk process, doing its usual job of turning more accurate and less interesting stories into less accurate but more interesting ones, how come all the stories point toward the same conclusion? Why are they all falsified and simplified in the same ways? Why do they all have the same emotional tone, and the same punchline? And have you noticed how little the style of storytelling used in them varies from story to story?

What do you suppose the odds are of that happening naturally?

I don't think you're really grasping my main point. Corporations deal in very, very large sums of money -- so large that a lot of people have trouble understanding the orders of magnitude involved. For instance, the cost of producing (not airing, just producing) the average thirty-second television ad is enough to pay the annual salaries of a staff of professional copywriters.

We know that a startling number of supposedly "grassroots" organizations have turned out to be works of pure corporate sponsorship. Oddly enough, their various agendas, taken together, turn out to point in the same direction as these false stories.

What do you suppose the odds are of that happening naturally?

I'm not asking rhetorically. I want you to tell me how you think this happens.

#124 ::: Marilee ::: (view all by) ::: December 05, 2004, 02:45 PM:

John Kelsey, did you go to Princess Anne High School?

#125 ::: mythago ::: (view all by) ::: December 05, 2004, 03:02 PM:

often settlements are made out of court simply because the business can't afford to do otherwise

No, "often" settlements are made out of court because court is an all-or-nothing issue. Juries do not sit down and mediate on behalf of the parties. In a settlement, both sides--not just the poor, beleaguered business--look at how strong their case is, how much time, money and effort a trial would cost, and how much strain it will be on the people involved. When a lawsuit is frivolous, the business will be best off filing for summary judgment and asking the other side to pay its legal bills.

Turning your statement around from the plaintiff's point of view, I could just as well say that "often," people with perfectly just claims settle for far less than they deserve, because they're scared that the other side's $250-an-hour lawyers will make sure they don't get a dime; because a lawsuit drags out and a settlement ends things; or because they do not want to rehash their pain and injury again and again for strangers.

I'll say it again: the "tort reform" myths backfire on honest corporations. When rumors circulate that you can get rich on a frivolous lawsuit, the scam artists come out of the woodwork looking for those mythical millions. And genuinely injured people are less likely to accept a fair, honest settlement, because they are convinced they are being cheated.

On "deep pockets": When somebody is injured, who bears the cost of that injury? "Deep pockets" means that we can't go after the first-best target--they weaseled out with bankruptcy, or they're long gone, or they don't have the money. That leaves us with two alternatives:

1. Stick the injured innocent person with the costs.
2. Get one of the not-as-guilty, but still-culpable, parties to make up the difference.

#2 is the "deep pocket." It's less unfair to ding a genuinely culpable party for more than its "fair share" than to stick the injured person with the gap. Please take claims of unfairness to the "shallow pocket," not to the injured person.

Either way a sensible person knows that the floor can be slippery near a swimming pool

God did not create that swimming pool fully formed out of the void. Somebody designed and constructed it. "A sensible person" designing a swimming pool knows that it will be slippery, and that the price of injury for slipping is very high, and will try to design a pool so that the risk of slipping is as low as is possible. (For example, by using textured concrete instead of flat, slick surfaces around the pool.)

Of course there is a trade-off between safety and sensibility, between cost and prevention. We can't have steak knives that aren't sharp. But we also don't allow swimming pools with the diving board built in the shallow end on the theory that "every sensible person knows" that it's only for cannonballs and not actual diving.

#126 ::: Steve Gillett ::: (view all by) ::: December 05, 2004, 03:14 PM:


I don't doubt that lots of corporate money lies behind many of these purportedly "grassroots" organization. I _will_ say that the money is effective, at least in part, because it fits with at least some people's real experiences.

There are limits to propaganda, particularly in a country like the US with lots of media outlets. Points of view that are just too dissonant with widely accepted cultural values or beliefs will not be accepted. "Abraham Lincoln is the Antichrist" may work in parts of the South (speaking as someone who has Southern roots himself), but it's not likely to become a mainstream position however much money is put behind it. The most effective propaganda fits in with people's extant beliefs, and those beliefs in turn are at least influenced by their own experiences.

Even Hitler played on what the Germans wanted to think about themselves. I doubt that even Goebbels could have sold the notion that (e.g.) "the Versailles treaty really isn't all that bad, and anyway we deserved it."

One needs to look at not just the propaganda, but why it's so effective.

#127 ::: Kimberly ::: (view all by) ::: December 05, 2004, 04:10 PM:

Thanks to mythago and Teresa for making points that have significantly shortened my post. And yet, it's still far too long. Sorry again.

All a damage cap would do is minimize the amount a defendant would have to pay once they've already been found liable under the law (probably after one of those expensive trials). How does that stop small businesses, exactly, from settling frivolous lawsuits out of court to avoid exorbitant legal fees?

If the "tort reform" folks were really concerned about small business settling litigation that is otherwise baseless, why aren't they out there lobbying for widely-available affordable legal assistance for small business owners?

Neither the administration nor groups like Common Ground are looking to inhibit frivolous litigation. Those people aren't on your side. They are lying. They are lying about the extent of frivolous litigation, and they are lying when they say their purported tort reform would stop it. Why? Because what they really want, you wouldn't want to give them.

What the damage cap folks want is to be free to stop internalizing the costs of their products to society, so they can lower their prices (or not) and reap more profit. Damage caps will disincentivize corporations such that there will be even more personal injury than there is now, largely uncompensated. Meanwhile, small businesses and individuals alike will still find it hard to afford quality legal help.

And no, Greg, I do not think any commercial litigation would be affected by tort reform. My contract and antitrust cases will still drag on for decades. Everything I've seen indicates that "tort reform" is focused most particularly on personal injury caused by corporate negligence, products liability, med mal and toxic torts. And that fact alone is pretty interesting.

#128 ::: Greg London ::: (view all by) ::: December 05, 2004, 04:16 PM:

it fits with at least some people's real experiences

No. it plays with people's view of what is right, regardless of what happened in reality.

You're bias is clear. You've not mentioned a single example of where a corporation screwed over the lives of human beings for money and a lawsuit brought some sense of justice to the situation. Yet, you've listed plenty of examples where the individual is suing the "deep pocket" for their own stupidity.

you're view of what is right is biased and propaganda simply has to play off of that bias to be successful.

"The system is broken and needs to be fixed"

The only problem is that once enough people have gotten behind the "the system is broken", it will be too late to control how they "fix" it.

You don't want to "scrap the system", but the poeple feeding you the propaganda DO. And if you don't see that, then you're a pawn. If you do see it, but think you'll somehow retract your support if their "tort reform" goes to far, then you are naive.

Why is "Tort Reform" focused on the problem and not their proposed solutions? Because most people would balk at their solutions if they were laid bare. groups like Common Good want to get "the system is broken" into the minds of people so that they can get the blank check to do with it as they will.

You either have to propose a solution or accept the current problem as it is. If all you're doing is harping on the problem and leaving the solution to "the powers that be", then you're feeding into the exact sort of mentality that makes propaganda successful.

And yes, you're harping on the problem. If you granted that the system solved some greater problem, namely keeping Nefarious Mega Corporations from treating dead and injured humans as some fixed cost in their accounting program, then you'd be acknowledging the value of the system as it is now. But all you're doing is talking about how it is broken, listing case after case of where it is "broken".

and no solutions.

presumably the solutions will be deferred to some other authority or for some later time. Either of which feeds the propaganda.

Tort Reform: the system is broken. pay no attention to the fix behind the curtain.

#129 ::: Teresa Nielsen Hayden ::: (view all by) ::: December 05, 2004, 04:20 PM:

No, Steve. I didn't ask whether the stories match your existing beliefs. I asked what the odds were that they'd all match each other in slant, focus, tone, and direction of errors.

Stories are powerful things. They lodge in our heads more firmly than facts do. Have you looked at any of my links, or checked out the real numbers? We don't have an epidemic of frivolous lawsuits. We don't have an epidemic of personal-injury lawsuits, period. Personal-injury awards are not up. Neither are malpractice awards.

There's no "culture of blame" that's grown up amongst Nameless People Out There whom none of us know, but in whose existence we are nevertheless supposed to believe. I will grant that there are occasional jerks, thieves, and narcissists; but those we have with us always.

I tell you: These stories are fiction. Lord know, by now I ought to know the stuff when I see it.

#130 ::: ElizabethVomMarlowe ::: (view all by) ::: December 05, 2004, 04:38 PM:


Ever burned yourself with coffee?

I have. (Guess I'm not smart enough not to.)

I'm holding a cup, trying to do something else, and whoops. Never, not once, has spilling a cup of the genial beverage sent me to the hospital. My experience tells me that hot coffee is indeed hot. It hurts. But it's never done anything but leave my skin red and ruin my pants. I think it's reasonable to say that my opinion is "rational" since it's based on multiple experiences.

So if I got 3rd degree burns and hospital time from a company's coffee, I would hold them responsible.

Your suggestion that the woman should be responsible for her own hospital-requiring injuries tells me we either have different views of rational or you've never spilled coffee.

Also? The idea that the error of walking dogs offleash in a camping area is punishable by death and life threatening burns creeps me the heck out.

#131 ::: Kimberly ::: (view all by) ::: December 05, 2004, 04:38 PM:


Tort Reform: the system is broken. pay no attention to the fix behind the curtain.

I want that on a t-shirt, please. Hot pink on black, fitted.

#132 ::: mythago ::: (view all by) ::: December 05, 2004, 04:49 PM:

because it fits with at least some people's real experiences

No, because it fits with at least some people's real stereotypes. And, bluntly, with their own greed. There's an old saying that no man looks under a bed unless he's once hidden there; it's also the case that many people who believe those urban legends about frivolous lawsuits are thinking "Boy, I'd take millions of dollars to spill hot coffee on myself!"

Of course it's true that we need to consider why the propaganda is effective. But "it's true" is not the reason. The Big Lie--repeat it over and over again, and people will accept it--is a much larger reason.

On hot coffee: for the mazillionth time, the plaintiff's money award was reduced by the amount of her injuries the jury felt was her own fault. (That's comparative negligence.) And that's fair.

Tort-reformers would like to bring back the concept of contributory negligence: if the plaintiff is .1% at fault, the defendant who was 99.9% is off the hook. This is what they refer to as "personal responsibility."

#133 ::: xeger ::: (view all by) ::: December 05, 2004, 04:50 PM:

ElizabethVomMarlowe said:

Also? The idea that the error of walking dogs offleash in a camping area is punishable by death and life threatening burns creeps me the heck out.

I'm afraid that I'm rather grouchy about the subject of offleash dogs - especially in camping and wilderness areas. Unfortunately, for every well behaved dog and owner there seem to be at least 2 [and on bad days 8 or 10] dog/owner combinations that can be described as uncontrolled -at best-.

These are the same dogs/owners that leave shit everywhere, plant muddy paws all over people that want nothing to do with them, think that it's "cute" that Rover's frightening people to tears, barking constantly, or chasing the wildlife (and if you ask farmers they've got a hell of a rant about dogs chasing livestock, for that matter).

You're right - it shouldn't be the case that walking a dog offleash results in death or injury. On the other hand, I think it's disingenious to say people should have the right to allow their beasts (dogs, children or otherwise) to run around uncontrolled without expecting consequences.

If one of my indoor-only cats manages to get out, and runs in front of a car and gets hit, you can bet that I'm going to be upset. I'm not going to yell at the car driver unless they went out of their way to hit the cat[0]. The cat has no idea what a car is - or that it's dangerous - and I remain forever responsible for that which I have tamed.

[0] This being your "intent vs accident" clause.

#134 ::: xeger ::: (view all by) ::: December 05, 2004, 04:53 PM:

mythago wrote:

Tort-reformers would like to bring back the concept of contributory negligence: if the plaintiff is .1% at fault, the defendant who was 99.9% is off the hook. This is what they refer to as "personal responsibility."

My... that reminds me of the kid who stole my car - but maintains that it was only 25% his fault that he stole my car - the rest was mine, because he could find the car and the keys...

[It's a longer story, involving among other things narcotics at the airport, and one of the protagonists running away to the circus - but suffice it to say that he had no business with the vehicle]

#135 ::: mythago ::: (view all by) ::: December 05, 2004, 04:55 PM:

I don't believe Elizabeth said that running dogs offleash should be consequence-free. (I am probabably even grouchier on the dog subject that you.) But that's quite a ways from saying, hey, if your dog ran into an area you didn't realize was fatal, and you died trying to get the dog out, too frickin' bad for you.

#136 ::: Greg London ::: (view all by) ::: December 05, 2004, 05:01 PM:

Kimberly: on a t-shirt, please. Hot pink on black, fitted

I'm still looking for clipart for my Hermetically Sealed President T-shirt. (Anyone got some good straight-on-from-the front and side mug shots of Bush?)

But I'll put the "curtain" shirt next on my list.

btw, I really like the sound of that color scheme


#137 ::: xeger ::: (view all by) ::: December 05, 2004, 05:08 PM:

mythago wrote:

I don't believe Elizabeth said that running dogs offleash should be consequence-free. (I am probabably even grouchier on the dog subject that you.) But that's quite a ways from saying, hey, if your dog ran into an area you didn't realize was fatal, and you died trying to get the dog out, too frickin' bad for you.

No - and I do mention that I don't think fatal (or nasty) consequences should occur.

I have to admit to some curiousity though - most beasts that I know don't jump headlong into water they haven't at least sniffed at first - and an earlier poster describes the water as 'foul'.

#138 ::: mythago ::: (view all by) ::: December 05, 2004, 05:09 PM:

Gosh, this is what I get for skimming the earlier comments, because I overlooked a couple of things:

Actually, asbestos in general is an example of where the system has run amok. I don't know the details of James Hardie, but I do know something about asbestos itself:

No, Steve, you don't. Or at least if you do, you're parroting the line of asbestos manufacturers. "Chrysotile is harmless" is a myth. So is the idea that all that chrysotile was pure and harmless; it's usually contaminated with tremolite, and asbestos mines hardly bothered to separate the two.

Nor is it true that any asbetos product is 'perfectly harmless.' Sure, harmless if you put it in a glass case and never touch it. But all those harmless shingles? All those chunks of half-round pipe insulation? You have to cut them. It's part of how you do the work. And those asbestos fibers get into the air, and settle, and anyone who breathes them is exposed to them. Oh, and so are their family members. When Mrs. Pipefitter shakes out her husband's clothes before washing them, or when Mechanic Jr. goes to help his dad fix up the car, they get exposed to asbestos too.

I spend a lot of time in depositions for asbestos cases. You know what's interesting? Whenever a client or a witness innocently mentions playing with asbestos--"Dad brought home a square of it, Mom used it to set the iron on"--all of the defense attorneys flinch. None of them start opening-statement prattle about chrysotile vs. amosite. They know. They may be there to argue that the plaintiff never used their product, or that he got sick from cigarettes and not from using their roofing felt, but they don't pretend that the stuff is safe because gosh, Scientific American said so.

(If anyone is direly interested in this stuff, I'd be happy to bury you in citations about how the asbestos industry spend decades funding articles and 'research' hiding the dangers of its products.)

#139 ::: xeger ::: (view all by) ::: December 05, 2004, 05:11 PM:

... and just to be clear - I'm merely curious about canine behaviour in general, since the dogs that I've been exposed to haven't exhibited that sort of behaviour.

#140 ::: Mark ::: (view all by) ::: December 05, 2004, 05:14 PM:

I note that the front page of today's NY Sun has a graphic that looks a heck of a lot like the one that touched off this thread (with accompanying article and inside editorial). I'm sure that's _purely_ coincidental...

#141 ::: Bruce Baugh ::: (view all by) ::: December 05, 2004, 05:23 PM:

I can't find the link right now, but Nathan Newman marshalled evidence earlier this year suggesting that union membership and large personal-injury settlements are inversely correlated: in states with relatively high rates of union membership, large awards are scarcer, and vice versa. The states most favored by that fraction of personal-injury lawyers who inspire the stereotype are pretty much all in the South, dirt poor and thoroughly un-organized. I'd never thought it about it before, but his statistics seemed sound, and it fits in with the story Teresa is presenting for us here: the personal-injury claim is the response people pursue when they can't get justice other ways, and the assault on it from big business is very much an effort to deepen the "heads we win, tails you lose" chasm.

#142 ::: Lenora Rose ::: (view all by) ::: December 05, 2004, 05:24 PM:

Steve: Like Elizabeth, you lost me the moment you said you didn't mention the dogs because you didn't think it was "important".


In other words, it didn't fit the point that this was "frivolous". It didn't fit the picture you wanted to paint of people just diving into scalding water wihout thinking, because, hey, it's hot and we want to swim. People might think maybe there was a merit to the case if the people fell (not dove, not even waded, fell) while trying to save pets.

Some might still feel it's frivolous. I feel for people horribly burned trying to rescue a beloved pet (Happens all the time in burning buildings), but there *are* valid arguments against signage in this situation, and for dogs on leash. It's not black and white. It's complicated (Funny how it always goes back to that, isn't it?)

But what squicked me more than the image of boiling dogs, what *you* did that squicked me, is to not give all the facts, and deliberately deny the rest of the posters a fair chance to decide whether the suit was in fact frivolous and whether you had made a valid point.

You can't argue that the "frivolous" lawsuits are real and not being spun while doing it yourself.

#143 ::: Lenora Rose ::: (view all by) ::: December 05, 2004, 05:37 PM:

Xeger: Some kinds of dogs (Retrievers especially, but I've seen a shep do it once), do plunge into water of their own free will. Especially on a hot day. It's not nearly as common as approaching it slowly to drink, but the owner might not think much odd about a dog running for a pool on a hot day (However "scary" the water looks. Dogs who do like water aren't aesthetes).

#144 ::: Alex Cohen ::: (view all by) ::: December 05, 2004, 05:46 PM:

The funny thing is that the modern corporation -- in the legal construct sense -- is precisely about shifting personal responsibility to a corporate entity. The only reason that I'd consider creating a corporation for my consulting business is so that I won't be personally liable if a client sues me.

Now there's nothing wrong with that, or, better, that's a good structure to encourage potentially risky entrepreneuring.

But doesn't it seem odd for the very people who are the champions of this responsibility-shifting structure -- see in particular their behavior in criminal cases such as Enron -- to then tell everyone outside the structure that they must shoulder all responsibility for the results of individual/corporate interactions?

It's almost as if they're saying: you're only safe when you're on the inside.

Now there's an interesting question on why anyone does this, since, well, corporations aren't actual things, why people act against their own self-interest to promote the rights of alien entities. Do they never think they'll suffer malpractice?

#145 ::: pericat ::: (view all by) ::: December 05, 2004, 06:01 PM:

Steve Gillett:

When I was there with my dog--in fact, in general when I'm in any area containing potential hazards with my dog (cliffs, mine shafts, etc.)--he's not running around. So, yes, the pets being boiled alive would perhaps trump clear thinking--but the pets shouldn't have been running around in the first place.

The dogs weren't "running around", though. The people stopped near the spring, and one of them lowered the tailgate, and the dogs were gone, just that fast.

Can you honestly say that your pets are always, every second, under strict voice or leash control when you and they are out in the backcountry? Have there never been any moments where they slipped your grasp and went haring off for a creek or a squirrel and you called them back and everything was fine?

And apparently the real version is even worse than I remembered. I did _not_ remember that the BLM actually paid out our tax dollars. So perhaps we can chalk this one up as a junk lawsuit that _worked_, huh?

Ah. The sacrosanct tax dollar. Yes, your taxes. And those of the dead woman, and her mother, and of the survivor himself, and all their friends and family. The same taxes that go to maintain the land in the first place in a pristine condition. That's the cold tradeoff of allowing public access to wilderness areas: people get hurt and sometimes die, and that, too, has to be paid for.

The survivor didn't win anything in this judgement. He didn't so much as break even. He's never going to be well again; with care he can be brought to the level of "as good as can be expected, under the circumstances". And that's as good as it will ever get for him.

The BLM is responsible for public safety on that land; this is so regardless of any finding of negligence. As far as I can tell, no one has found them at fault, but that does not diminish their responsibility.

By the way, re fences and such: this is _wild_ country;

<snark>Oh, pooh. You can get there by car.</snark>

#146 ::: Graydon ::: (view all by) ::: December 05, 2004, 06:54 PM:

To go along with Teresa's point about story, a small note about communication from untrusted sources.

Lots and lots of communication goes on among non-human species; the basic rule for detecting honesty is 'saying this has a cost'.

So when a healthy, adult antelope notices the lion, it springs straight upwards before running off.

That has a cost -- it delays the antelope getting further away from the lion -- but what it communicates is 'I'm healthy, you can't catch me', since it takes a healthy antelope to do it at all, and, lo, the lions generally do not make a serious predation attempt at that point.

Someone who never tells you anything that reflects poorly on them or their interests is lying to you. Noticing the lack of anything that has a cost to them in their communication won't tell you what they're lying about, but it will tell you that they're lying.

#147 ::: xeger ::: (view all by) ::: December 05, 2004, 06:57 PM:

pericat wrote:

The BLM is responsible for public safety on that land; this is so regardless of any finding of negligence. As far as I can tell, no one has found them at fault, but that does not diminish their responsibility.

I really have to disagree with you there. The Black Rock Desert Wilderness is - well - wilderness. Expecting somebody to be out there handholding in every corner rather defeats the point of wilderness. I think that it sucks when somebody gets killed because they decided it was a good idea to use an inflatable mattress to go for a float on a spring river in flood - but I don't for a second think that it's somehow the fault of the local city for not telling them that water with ice in it is cold - or that an air mattress isn't suitable for rivers in flood. It's the same deal for people that go for a hike in the desert without taking extra water, sunscreen, emergency supplies et al.

I don't think that people should be rewarded for walking along like the fool on a Tarot card, blissfully failing to pay attention to their surroundings.

At any rate, here's an interesting thread about hot springs, and the "improvements" done by the BLM as a result of this case.

Oh, pooh. You can get there by car.

To quote from

The area has a typical climate of the Great Basin; hot summers with temperatures 
over 100 degrees F and cold winters with temperatures often below 20 degrees F. 
Sufficient amounts of water should be carried. Because the area has poor cell phone 
coverage the only reliable form of communication is by satellite phone. Access roads 
in the area are very rough and visitors should have high clearance four wheel 
drive vehicles with extra gas and two spare tires.

I know that you're snarking, but please remember that "by car" has very different meanings for city folk and country folk.

#148 ::: ElizabethVomMarlowe ::: (view all by) ::: December 05, 2004, 07:10 PM:


Dogs off leash is a grouchy subject for me, too. mythago pretty much summed up my feelings.

Anyway--retrievers routinely leap before looking. Its been enhanced through tons of selective breeding. We had a Brittany-lab mix when I was a kid who leaped out of our moving car once. She'd smelled a lake. (She was fine, we never left the window down again, etc.) She would never have sniffed or checked the water in any way.

#149 ::: xeger ::: (view all by) ::: December 05, 2004, 07:31 PM:

ElizabethVomMarlowe wrote:

Anyway--retrievers routinely leap before looking. Its been enhanced through tons of selective breeding. We had a Brittany-lab mix when I was a kid who leaped out of our moving car once. She'd smelled a lake. (She was fine, we never left the window down again, etc.) She would never have sniffed or checked the water in any way.

Interesting! I have to admit that I've tended to consider retrievers (goldens in particular) to be particularly blonde in the stereotypical joke way since my college landlords (Ken & Barbie) obtained one to test whether they were ready to have children.

My vote would have been "no, clearly not ready" - but their having an exubert puppy did relieve us (living in the basement) of learning still more about their personal life through the conductive medium of the living room floor/roof.

I suppose that you'd have to breed "leap before looking" in - I can't picture any sensible dog -wanting- to go jump into a cold lake and fetch things :)

#150 ::: dilbert dogbert ::: (view all by) ::: December 05, 2004, 07:49 PM:

I got tired of reading the comments to see if this had been posted: Tort Reform = Freedom to Kill.
Sort of like the fraud of the Freedom to Farm Act.

#151 ::: pericat ::: (view all by) ::: December 05, 2004, 08:23 PM:


Expecting somebody to be out there handholding in every corner rather defeats the point of wilderness.

Ahem. I saw you palm that card, now put it back. The BLM is most certainly responsible for the safety of the public in areas under their management. The implementation of this responsibility, however, is not automatically "handholding in every corner", any more than it would be for a construction company charged with maintaining a safe work site.

So let's have none of this 'handholding' stuff.

I don't think that people should be rewarded for walking along like the fool on a Tarot card, blissfully failing to pay attention to their surroundings.

Reward? Death and permanent injury? Are we talking about the same outcomes here?

I know that you're snarking, but please remember that "by car" has very different meanings for city folk and country folk.

Returning to being serious about cars, if an area is accessible by vehicle traffic of any kind, then it will be used by people in cars with all that means: they'll have their pets with them, they'll have coolers full of drinks with them, they'll have their toddling children with them. A parks management board cannot just ignore that, on the grounds that it's not how they envision proper use of the land.

#152 ::: mythago ::: (view all by) ::: December 05, 2004, 08:33 PM:

It's not black and white.

Which puts us back at comparative negligence. A jury might, say, decide that 25% of the injury was the fault of the dog people (for having their animals unsecured), and 75% was the BLM's for having unmarked, unsafe and non-obvious dangers in a car-accessible, public-accessible area. Therefore if (again by way of example) the jury decides there are $100,000 in damages, they only award $75,000.

Punitive damages are only supposed to be awarded in cases of outrageous, shocking behavior. They must, per the Supreme Court, have some resemblance to actual damages--no awarding $10 for injury but $100 million in punitives.

They are the sole reason that corporations do not and cannot make more Pinto decisions. That is, they make the cost-benefit analysis unpredictable. Isn't that what we want? Or do we want corporations to cheerfully make unsafe products, as long as the resulting profit exceeds the cost of regulatory fines and lawsuits?

#153 ::: Mary R ::: (view all by) ::: December 05, 2004, 09:03 PM:

Thanks for the great thread. Painful memories. A friend of my brother's was left in a permanent vegetative state after a motorcycle accident. Turns out that the helmet he was wearing had a knack for protecting heads and breaking necks. They lost. When the insurance ran out, his single mother shot him and then herself. Wonder why their story isn't floating around the ether?

Chloe: The cocoa undoubtedly came from (as mentioned above) Dunkin' Donuts, where they serve their cocoa at a temperature slightly hotter than the surface of the sun. I get sick of coffee sometimes and I order my cocoa with ice cubes in it. Odd, but it works.

Strangely enough, I don't like my coffee super hot, and Dunkin Donuts is the only place that serves it cool enough for me to drink right away. Go figure.

Someone who never tells you anything that reflects poorly on them or their interests is lying to you. Noticing the lack of anything that has a cost to them in their communication won't tell you what they're lying about, but it will tell you that they're lying.

How do we convince America of this before the next election?

On Tort Reform (gack, cough) in General:

Anyone who talks about "tort reform" without including limits on what corporations can do to screw over individuals. Playing the game of "if only the world were as perfect as you and me," I would: 1) Give corporations some level of liability protection against punitive damages, but only if they maintain a certain level of transparency in their dealings with the public. Hiding known dangers, lying to the court, not fully co-operating with the disclosure process, etc. 2) After preliminary hearings, judges would be allowed to declare who will pay the court costs if they feel that the case is hopelessly slanted towards either side. This would push corps. to settle and scare off frivilous defendants. This could be limited where previous corporate wrongdoing is involved.

#154 ::: Graydon ::: (view all by) ::: December 05, 2004, 09:34 PM:

Mary --

Best bet is to find ways to repeat that idea to everyone you know. This will get some of them repeating it, and so on; there should be a we're-not-fools-or-patsies angle that has some traction. (Try to keep 'canny yankee' out of it, though. :)

In terms of reform, really, once you have a situation where someone whose total capital is measured in tens of thousands of dollars trying to sue an entity whose total capital is measured in tens of billions, no amount of procedural reform is going to do you much good. You either have to set up something like the Code Napoleon, where if the public defenders takes the case the whole resources of government are behind it, or remove from corporations their standing as persons, and with it any right of privacy.

It's rather like the problem of government -- if the net advantage of some piece of legislation is a couple-five billion dollars, what is it not worth doing to corrupt the legislators?

Since the answer is 'almost nothing', the correct response starts with making money for political campaigns tightly controlled; this won't fly in the US until you get that ammendement saying money isn't speech.

#155 ::: mythago ::: (view all by) ::: December 05, 2004, 09:41 PM:

Mary, corporations already have that protection from punitives. First, because to get punitive damages, a plaintiff must prove outrageous, shocking behavior. Second, as SCOTUS has said, those punitive damages must be somehow relative to the actual damages. And finally, because every court case with a jury has a judge, and has an appeals process. I find the best way to deal with "runaway jury" urban legends is to ask "What happened on appeal?" Invariably, the teller doesn't know.

Re your point #2, preliminary hearings are in criminal cases. In civil cases, defendants always have the right to a host of motions to get the case kicked before a trial: motion to quash, motion for summary judgment, motion for judgment on the pleadings, plus there are settlement offers and conferences. And if a judge believes a case was truly frivolous, she can sanction not only the plaintiff, but the plaintiff's lawyer.

More should be done to let small business know that they have rights, and alternatives to caving in and panicking if they are sued. What shouldn't be done is allowing megacorporations to hide behind small, family-owned businesses in pushing "tort reform."

It is big corporations suing one another, by the way, that pay the lavish bills at expensive, white-shoe law firms. Not consumer lawsuits. Pay no attention to the litigious corporation behind the curtain.

#156 ::: xeger ::: (view all by) ::: December 05, 2004, 09:47 PM:

Pericat wrote:

Ahem. I saw you palm that card, now put it back. The BLM is most certainly responsible for the safety of the public in areas under their management. The implementation of this responsibility, however, is not automatically "handholding in every corner", any more than it would be for a construction company charged with maintaining a safe work site.

Heh. I'm not the only one palming cards :) The BLM are very clear about what you should expect in a wilderness area (to whit - nothing at all in terms of signs, roads, garbage, no cell coverage, nobody around...).

Xeger said:
I don't think that people should be rewarded for walking along like the fool on a Tarot card, blissfully failing to pay attention to their surroundings.

pericat boggled:
Reward? Death and permanent injury? Are we talking about the same outcomes here?

Er - you're misreading me. I'm suggesting that it's reinforcing a sense of invulnerability when you hand hold people around all potential dangers.

Returning to being serious about cars, if an area is accessible by vehicle traffic of any kind, then it will be used by people in cars with all that means: they'll have their pets with them, they'll have coolers full of drinks with them, they'll have their toddling children with them. A parks management board cannot just ignore that, on the grounds that it's not how they envision proper use of the land.

IMHO the parks management board shouldn't have to spend their time chasing after idiots that decide to "make" roads ["Really Francis - just one time over this desert that takes thousands of years to recover from a single footprint with our 4x4 group won't make any difference"] or don't pay attention to the weather, or otherwise fail to take [yes, I'm using that phrase] personal responsibility for where they're going. It's one thing when you're talking about a deliberate and malicious intent on the part of an organization (the pinto gas tanks), and quite another thing when you're trying to force an organization to make up for personal deficiencies (going out into a desert without water, because somebody will be sure to find them and water).

I am in no way in favour of supporting and rewarding bad behaviour - and willful stupidity is certainly bad behaviour.

#157 ::: mythago ::: (view all by) ::: December 05, 2004, 10:17 PM:

when you hand hold people around all potential dangers.

Who has suggested "hand-holding" in regard to ALL potential dangers? Nobody. Nobody is suggesting that we paper the wilderness with warning labels. Nobody is saying that people should sue the BLM if they jump off a 100' cliff in broad daylight.

Warnings about severe, non-obvious dangers are hardly hand-holding about "all" potential dangers. (People might expect to drown in a pool of water; they don't generally expect to boil to death.)

The idea that all injury is due to stupidity and willful disregard of the obvious is yet another lie of the tort-reform movement.

#158 ::: xeger ::: (view all by) ::: December 05, 2004, 11:15 PM:

mythago writes:

Warnings about severe, non-obvious dangers are hardly hand-holding about "all" potential dangers. (People might expect to drown in a pool of water; they don't generally expect to boil to death.)

Perhaps I'm unusual then - when I plan to go to hot springs (and we actually don't have enough information to know if that was the case for these people - I'd suspect as much, given that there's literally nothing else in the area), I look up information about those springs.

Hot springs are - well - hot. If you're going to a destination to sit in hot springs, you should be prepared to figure out which ones are hot. Guide books commonly include phrases like:

These warm and hot springs are source waters for The Bog downstream. 
They vary widely in temperature, so explore the area to find the heat level you desire. 
As always, be extremely careful and test the temperature...

The fact that hot springs are - well - hot - is only a non-obvious danger if you haven't actually thought to check into the hazards in your area (or the area that you're travelling into).

I think that it's personal responsibility to find these things out.

I think it's a tragedy when somebody doesn't, and bad things happen to them.

I also think that there's a difference between "well known dangers" (which in that area includes dehydration, significant temperature differences between night/day, heat stroke, sunburn, flash floods, hot springs, poison gas, poisonous critters... and I'm sure I can come up with more than that), and "hidden dangers" (one of the more interesting ones in the desert is disorientation and associated misjudgements in direction).

Willfully hidden or denied dangers (like the Pinto tank) are another kettle of holothurians.

#159 ::: CHip ::: (view all by) ::: December 05, 2004, 11:43 PM:

It's fascinating how the opening of this dovetails with one of the themes in the discussion under "Nice" on Patrick's blog; the urban myth of something being more complicated than it really is, crossing the the trope that liberals understand that things are complex while conservatives like simple answers.

Steve (recently) says: There are limits to propaganda, particularly in a country like the US with lots of media outlets. Points of view that are just too dissonant with widely accepted cultural values or beliefs will not be accepted.

Teresa has told you something about Story. Do we also need to rehash (from, e.g., "Nice") the 40 years the Right has spent dragging the high and low levels off-center so that "personal responsibility" (e.g.) can mean what they want it to mean? As for short-term propaganda, consider the fraction of the populace that still believes the lie that Iraq had WMD. The Right has rediscovered how effective it is to start by dividing "Us" from "Them"; that done, they can lie endlessly about "Them", thereby reaffirming the virtue of "Us".

And while we're on your favorite buzzword: I see the Right howling for Annan's scalp because of the mess in the Iraq oil-for-food program -- but watch them change the subject if it's suggested that Rumsfeld take responsibility for Abu Ghraib, or any corporate executive for any of the corporation's misdeeds. Does being a member of a corporation relieve one of the duties of a citizen?

(several side threads ignored, but one offers a platform.) Graydon wrt Charlie: I can't identify a starting point for the pernicious insistence on short term results, but it's not the 1970's; Townsend (Up the Organization) was already fuming about it in the late 60's, saying flatly that corporations should refuse to predict quarterlies. (He also snarked on the abilities of contemporary boards of directors, saying they tended to "pull up flowers to see how the roots are doing".) It's amazing how many of the issues that Townsend raised have continued to fester, or gotten worse.

#160 ::: mythago ::: (view all by) ::: December 06, 2004, 12:10 AM:

I think that it's personal responsibility to find these things out.

That still does not free the landowner of all responsibility for warning people about non-obvious dangers. "Oh, let them read a guidebook or something" is not a defense.

#161 ::: pericat ::: (view all by) ::: December 06, 2004, 12:53 AM:


Heh. I'm not the only one palming cards :) The BLM are very clear about what you should expect in a wilderness area (to whit - nothing at all in terms of signs, roads, garbage, no cell coverage, nobody around...).

Tsk. The existence (and removal, and re-insertion, and vandalism thereof, ad infinitum) of signage was not a point of contention by any of the parties to the suit. In sum, the BLM recognized the danger posed by this particular hot spring to the extent of signposting it.

Cell coverage is neither here nor there, nor garbage, but roads are. Whether made by the BLM, or by yahoos on wheels, the roads are there. One cannot pretend they aren't merely because they shouldn't be.

If they were unable to prevent the creation of roads onto the land whose 'wildness' they were charged with maintaining, they at least had to fall back on public education, such as signage, to indicate the location and nature of life-threatening hazards. They, at least, seem to be aware of that.

Er - you're misreading me. I'm suggesting that it's reinforcing a sense of invulnerability when you hand hold people around all potential dangers.

Ah, okay. However, 'hand-holding' is not the converse of 'hands-off', and you do both the public, including yourself, and its representatives, a disservice to couch the many and varied problems of public land management in such exclusive terms.

Even so, what set-aside wilderness should consist of in a perfect world is not at issue either. What is, is how and why and how quickly, when an individual is injured or killed while enjoying a common facility, that individual becomes the butt of jokes or the villian of a folk tale.

The definition of someone who behaves rationally in an emergency is "hero". The definition of someone who behaves irrationally is "normal". It is the duty of those who maintain land for common use by normal people, and those who manufacture items for ordinary use by normal people, to ensure that when, not if, something goes wrong, the fewest numbers of people are injured, without counting on the presence of a minimum number of latent heroes.

#162 ::: Tom Whitmore ::: (view all by) ::: December 06, 2004, 01:15 AM:

No, pericat, the definition of someone who survives in a crisis is "Lucky". This may or may not include being rational. More often than not, it does -- but reacting rationally is not a sure road to heroism. It's easy to come up with a rationale for why what I did worked -- but that's not the same as reacting rationally. "Rational" says I should pick the response that works 50.0001% of the time; "Hero" is "I guessed right this one time regardless of the odds."

#163 ::: Greg London ::: (view all by) ::: December 06, 2004, 02:34 AM:

Another T-Shirt idea for tort reform:

Trojan "Tort Reform" Horse:

Statue of giant statue of a horse standing before a walled city labeled "Public".

Plaque on the outside of Horse:
We offer this gift in good standing to the Public that the civil court system is broken and in dire need of repair to prevent frivolous lawsuits, emotional distress, ambulance chasers, and whiplash victims.

(Payload inside the Horse):
Fixed Corporate Liability
The cost of doing business has an accounting look up table for dead and injured.

I'm open to additions and suggestions.

I installed Poser tonight, got rough draft of "hermetic president" drawn. Will try and finish it in teh next couple days.

#164 ::: liz ::: (view all by) ::: December 06, 2004, 03:18 AM:

As to the "Common Good" business, remenber that one of the goals of the Right Wing is to destroy public education.--

Sadly, the slavish devotees of "whole language" reading instruction have done that already. Very little education in anything is possible if reading is laborious.

#165 ::: Alex Cohen ::: (view all by) ::: December 06, 2004, 09:48 AM:

So you're wondering how these "frivolous lawsuit" stories get out there?
Read this. It's chilling.

#166 ::: Jonathan Vos Post ::: (view all by) ::: December 06, 2004, 11:16 AM:

"Mystification is a political tool: making something complicated is a way of disempowering people."

-- Barbara Katz Rothman, "On Authority", in her book Genetic Maps and Human Imagination: The Limits of Science in Understanding Who We Are [1998]

#167 ::: mayakda ::: (view all by) ::: December 06, 2004, 11:37 AM:

Yes, that's definitely the major "disturbing trend" of modern society. Which no doubt explains why business is so utterly powerless, completely shut out of politics, unable to enact any kind of agenda, CEOs selling pencils in the street, the commanding heights of the Federal government dominated by Ralph Nader and Naomi Klein. Because corporations get blamed too much. It's the Big Story! Darn, what we need is more people to take individual responsibility.

Heh! Love that.

All the good Tort Reform reframes are already taken! *sulk* Still, how about:
Tort Reform: Corporations are above the law.
Tort Reform: Just say no to recalls.
Tort Reform: David was really unfair to Goliath.
Tort Reform: Because Joe Camel is so CUTE!
Tort Reform: I want my phen-fen back.

#168 ::: Jonathan Vos Post ::: (view all by) ::: December 06, 2004, 12:03 PM:

"Demise of dissent, lack of respect for seniority and scholarship, and the pernicious politics of diversity have only generated a dysfunctional culture that is hardly conducive to epistemic growth. Science without higher purpose is a monstrous instrumentality of self-destruction."

-- Brij Mohan, Professor, Louisiana State University, Baton Rouge
[Letter to the editor, Los Angeles Times, Sat 4 Dec 2004, p.B13]; response to ["When Science Flees the U.S.," David Baltimore, President, Caltech, Pasadena, California, Commentary, Los Angeles Times, 29 Nov 2004].

#169 ::: Tim Kyger ::: (view all by) ::: December 06, 2004, 12:08 PM:

Let me throw in a thought WRT the anti-tort reform meme.

This is a constitutional issue; it isn't just some passing political or policy disagreement. This concerns the very right to petition for redress, negating in a very subtle fashion what is written right there in the constitution (and in the Declaration, too). Petition for redress, next to free speech/free press, is at the very foundation of any society that can reasonably be called "free."

This issue is more important, IMHO, than "merely" muzzlling (or not muzzling) some trial lawyers. It strikes at the very core of the polity.

Or so it seems to me.

I also don't think that any of the groups on the Right for tort reform are about any other thing than tort reform; they truly don't see the implications of putting limits on the ability to petition (i.e., sue) the government and/or other entities (such as corporations, or each other). FWIW.

#170 ::: Linkmeister ::: (view all by) ::: December 06, 2004, 12:44 PM:

Alex Cohen beat me to the "scoop." His link takes you to a WaPo story informing us (among other things) that the US Chamber of Commerce has started a weekly newspaper in Illinois to report on what it considers abuses of the legal system. Here's the story.

#171 ::: Greg London ::: (view all by) ::: December 06, 2004, 12:48 PM:

The washington post requires registration. blah!

#172 ::: Graydon ::: (view all by) ::: December 06, 2004, 01:01 PM:

CHip --

The early 1970s is certainly not when the demand for short term returns over everything else started; is is when it was legally mandated.

Getting rid of that legal mandate in place of another strikes me as entirely worthwhile, if extremely difficult.

#173 ::: Linkmeister ::: (view all by) ::: December 06, 2004, 03:51 PM:

Mr. London, there's BugMeNot for those circumstances. Enter the WaPo URL in the box and you ought to get a usable ID/PW for the paper.

#174 ::: BSD ::: (view all by) ::: December 06, 2004, 04:28 PM:

And this seems to be common with unusual incidents that result in lawsuits; important details get lost as the anecdote is tightened up in the telling.

This is how "sucked the intestines out of a little girl" became a "hot tub case".

#175 ::: Patrick Nielsen Hayden ::: (view all by) ::: December 06, 2004, 04:31 PM:

I just want to say that Alex Cohen's comment, here, seems to me one of the most cogent and dead-on observations in this entire thread.

It's astounding that the beneficiaries of special legal arrangements to limit personal liability--that's what a "corporation" is--should be lecturing anybody about "personal responsibility." The sheer shameless acrid hypocrisy of it would take the paint off a refrigerator.

Go, re-read Cohen's comment.

#176 ::: Christopher Davis ::: (view all by) ::: December 06, 2004, 04:57 PM:

Linkmeister: or go one better and use the BugMeNot bookmarklet; one click and you get a handy pop-up window with an id/password pair.

#177 ::: Marilee ::: (view all by) ::: December 06, 2004, 05:34 PM:

Mythago, anybody who's ever had cats has looked under the bed.

#178 ::: xeger ::: (view all by) ::: December 06, 2004, 06:21 PM:

Marilee wrote:

Mythago, anybody who's ever had cats has looked under the bed.

Thank you! I needed that giggle (last night was "Kittens gone wild!" - hours of dashing and hiding and chasing and jumping and pouncing - and yes - thumps from under the bed :))

#179 ::: Greg London ::: (view all by) ::: December 06, 2004, 07:02 PM:

Go, re-read Cohen's comment.

Ah, crap, the paint just melted off my refrigerator. Damn it!

Hm, the idea of someone (who's responsibility is legally exempted inside of a corporation) lecturing someone else on personal responsibility, seems to call forth another T-shirt...

How about a guy wearing a bunch of football padding (labeled "corporate protection") lecturing a bunch of people in street clothes about how they can't wear any padding.

hm, needs some work. there's a shirt in there somewhere, though.

A knight in armor lecturing an unarmed peasant.

hm... ponderous...

And then my shoes started to squeak...

#180 ::: Kimberly ::: (view all by) ::: December 06, 2004, 07:32 PM:

mythago types in all of my thoughts as I have them; let me just echo, and agree. mythago is wise.

Re: Chamber of Commerce/Illinois WP story, which I must confess I haven't read (b/c I really need to get this posted and get back to work or I'll be here all night).

I wonder if the documenting of abuses of the legal system will include large corporate defendants responding to a document request with a veritable dump of sixty to seventy boxes of documents in no discernable order, in which even the individual pages of unified documents are not fastened?

Or to the practice of producing persons who don't know diddly about the events at issue in response to a deposition notice requiring the person who knows the most about the events at issue to testify?

Or to the filing of numerous frivolous motions for protective orders and to compel production and to sanction plaintiff's attorney and to strike several sentences from each deposition taken and to delay the trial date and to reschedule depositions?

Or to the misrepresentation of fact or law to the Court in briefs and oral argument?

Or to the smearing of the plaintiff with highly irrelevant and highly prejudicial personal attacks on the public record, or in front of the jury, and the judge rules on the objection, "the jury is instructed to disregard the immediately prior testimony," as if that would actually WORK?

I'm just sayin'.

Greg: there's a shirt in there somewhere, though.

And if it's fitted, hot pink or ice blue on black, I'm buyin'

#181 ::: Alex Cohen ::: (view all by) ::: December 06, 2004, 09:43 PM:

Greg: there's a shirt in there somewhere, though.

Um, can I have a t-shirt that says "I just want to say that Alex Cohen's comment, here, seems to me one of the most cogent and dead-on observations in this entire thread." - Patrick Nielsen Hayden

Thanks, Patrick. That was a nice egoboo on the same day that I got a form reject letter from F&SF for a story that a certain well-considered editor thought could get in.

Maybe I need to be writing about corporations, although I do enough of that in my non-writing working life.

#182 ::: mythago ::: (view all by) ::: December 06, 2004, 11:38 PM:

Mythago, anybody who's ever had cats has looked under the bed.

Not more than once. The second time, you learn to use the dangly cat toy to lure them out.

Kimberly, you are kind, and optimistic in your estimate of sixty to seventy boxes. In corporate litigation, hundreds is more likely. Such boxes are colloquially referred to as "discovery bricks."

#183 ::: Charlie Stross ::: (view all by) ::: December 07, 2004, 08:18 AM:

Going back to the "Common Fraud" topic, I ran across something via slashdot today that seems to be thematically linked -- it's not about "tort reform", but according to a report in MediaWeek complaints to the FCC in 2003 totalled 240,000, in 2002 the total was 14,000, and the total in both 2000 and 2001 was under 350 per year. It now turns out that 99.8% of complaints to the FCC originate from a single pressure group, Parents Television Council (slogan: "because our children are watching").

Spotting the astroturfing implications is left as an exercise for the reader ...

#184 ::: mayakda ::: (view all by) ::: December 07, 2004, 09:53 AM:

The malpractice suits seem, to me, to be a different animal then lawsuits againts corporations. I don't like the way it shifts the burden onto all doctors, through high malpractice insurance premiums.
I would probably like it beter if it was part of healthcare reform. If everyone had access to healthcare, and malpractice suits were about limiting the doctors' ability to practice medicine. (Suspending his license, or removing it). Which they are supposed to do now, through a medical review board, but maybe there should be patient advocates on that board, not just doctors.
I just don't know enough about the issue, I guess.

#185 ::: Trey ::: (view all by) ::: December 07, 2004, 12:08 PM:

I just cruised the PTC website and am ahocked and amazed to find numerous entertainers who've benefitted from family safe shows, as well as those who would tell others what to watch.

Now that the sarcasm is off, I see a lot of people who'd benefit if network TV came back to the way it was when I grew up in the 70's and 80's. I also see a lot of people who can further gin up support for their causes by creating complaints to the FCC.

Sad, and I wonder why a news organization hasn't pointed out this incestuous link. Yet.

#186 ::: Kenneth Fair ::: (view all by) ::: December 07, 2004, 02:28 PM:

Another astroturf group like the one you've described is the Coalition for a Fair Judiciary.

Besides spewing a bunch of horsehockey about "activist judges," you'll note on the front page that they have a link to a page entitled 'Dem Wacky Judges. Do you think it's just coincidence that they abbreviated "them" as "dem"? Yeah, me neither.

#187 ::: xeger ::: (view all by) ::: December 07, 2004, 02:36 PM:

mythago responded to:

Mythago, anybody who's ever had cats has looked under the bed.

Not more than once. The second time, you learn to use the dangly cat toy to lure them out.

Heh. That depends on -why- you're looking under the bed...

My cats like to steal pens, cables, suitable garments - and chew the handles of plastic bags in half in remote locations. They also like to hide their toys under the bed, and whine miserably until you retrieve them.

Then again, I think I'd feel sorry for any miscreant that tried to hide under the bed with them...

#188 ::: Marilee ::: (view all by) ::: December 07, 2004, 05:02 PM:

Xeger, my Spirit was a magpie, she'd steal anything shiny and leave it in my bed. She's almost blind now, so she doesn't steal much anymore. The only way I can look under my bed safely is to lie on it and look over the side, but I don't have to do that much anymore because Shiva believes me now when I say that the maid is gone.

#189 ::: mythago ::: (view all by) ::: December 08, 2004, 09:43 AM:

The malpractice suits seem, to me, to be a different animal then lawsuits againts corporations. I don't like the way it shifts the burden onto all doctors, through high malpractice insurance premiums.

Shifts what burden? The burden of paying for the cost of injured patients? Should that burden more fairly be on all patients?

If we had some kind of worker's comp system for victims of medical malpractice, or a national health system, malpractice lawsuits would drop. Right now, insurance companies are making up the costs of bad investments and bad planning (i.e. rock-bottom premiums) on their doctor clients.

#190 ::: kodi ::: (view all by) ::: December 20, 2004, 12:52 PM:

Very late to this discussion, obviously, but I just want to say that I would substitute "the right to be made whole" for "the right to sue."

#191 ::: Teresa Nielsen Hayden ::: (view all by) ::: December 21, 2004, 04:53 PM:

That's good language, Kodi.

#192 ::: Peter ::: (view all by) ::: January 02, 2005, 01:10 AM:

Real late follow up here....

Re: the snopes link...
The story about the RV driver getting up to go brew some coffee was told in the early 1980s by employees of GM to try to explain to themselves why GM got out of the RV business. The fact of the matter was that the GM RVs were aat the top end of the market price for RVs and as a result, sales were rather low. Back then, GM also labeled their cruise controls "auto cruise" and the fairy tale claimed that the plaintiff believed it was an autopilot.

#193 ::: Jonathan Vos Post ::: (view all by) ::: January 03, 2005, 05:22 AM:

kodi & Teresa:

I agree. And once President Clinton did, not that Bush remembers...

Q[uestion] "Mr. President, I'm sure you've heard that the
Republicans are heaping criticism upon you, saying this veto is a
payback to the Trial Lawyers Association whose members have
contributed heavily to your reelection. Your response?"

The President: "Well, I know they've said that. I think
you should go back to them and ask them how they could justify
depriving Americans who are just like these people of the right to
recover for their injuries. And ask them if they really believe that
our economy is so fragile that we have to strip from these people the
RIGHT TO BE MADE WHOLE in order to continue to make our economy go

The White House Virtual Library;White House Press Release; Remarks By The President In Veto Of Product Liability Bill

The White House
Office of the Press Secretary

For Immediate Release May 2, 1996...

[see hotlinked page for details, transcript...]

#194 ::: js ::: (view all by) ::: January 13, 2005, 10:58 AM:

God. Found this thread about a month ago on Monkeyfilter, finally had time to read through all of it.
Great stuff, posters.
(Might want to mention the fictionalized version of similar themes in the book Jennifer Government by Max um... Max Somebodyorother... he runs Nation States.)
Why hasn't the left organized to take this one away from the right? Let's get tort reform by offering legal assistance to small businesses (one place that libs need to court if they wanna win) as one above poster mentioned, and make it easier to get mediation as an alternative to lawsuits. That lets libs help the little guy while still sticking it to the man.

#195 ::: Teresa Nielsen Hayden ::: (view all by) ::: January 13, 2005, 05:06 PM:

Where we need to clean up the poison is in the general public understanding of law, liability, and the court system.

Letting these guys diss the law is like letting some stranger make fun of your best friend. He may be funny, and your friend may sometimes be irritating, but you and your friend are on each other's side, and the stranger isn't.

#196 ::: Fred A Levy Haskell ::: (view all by) ::: August 25, 2006, 02:11 AM:

Just now read this. By G-d, Teresa, I'm proud I know you and can count you among my friends.

#197 ::: Mark Reed ::: (view all by) ::: December 05, 2006, 04:18 PM:

Wow. I was completely in the dark about all this stuff, totally buying the "litigious society" line. I feel like an imbecile.

Along the same lines as "tort reform", can anyone suggest a place to find more balanced information about "immigration reform"? My searches to date have so far yielded sites full of "DEFEND US FROM THE HORDES OF EVIL INVADERS!", and I'd like to hear something from the other side of the coin.

#198 ::: Teresa Nielsen Hayden ::: (view all by) ::: December 05, 2006, 05:15 PM:

Mark, you're not stupid. Why shouldn't you believe something you've heard coming at you so many times from so many different directions?

Immigration reform is fraught. One thing I can tell you is that there was a wave of bizarre causeless agitation earlier this year. I grew up not far from the Mexican border, have lived in various cities where immigration is an issue, and for the last two decades have lived in NYC, so I think I'm familiar with the standard tropes of anti-immigrant sentiment.

The wave that hit earlier this year -- the one about how we were literally being "invaded" from Mexico, with the collusion of the Mexican government -- was new, and it turned up all over the country. Right there, you know there's something artificial about it. Normal processes of opinion formation won't prompt people in Tucson, Atlanta, and upstate New York to simultaneously start talking about immigration in the same novel terms.

After I'd watched this for a while, I got in touch with various friends and relations back in Arizona, and asked whether anything had changed along the border. They said no, except that the increased attempts to stop border crossers were forcing them and the drug smugglers into more dangerous wilderness areas, and that nasty things were happening to them out there.

My working theory is that fear of an immigrant invasion was being beta-tested as a political hot button/distraction in advance of the 2006 elections. That got started in late March. The response -- massive demonstrations by and in support of immigrants -- came in mid-April Shortly after that the agitation over immigration fell off to normal background levels.

No way can I believe that's not artificial. People don't just start worrying about something out of the blue, care about it for two months, then forget all about it.

#199 ::: Avram ::: (view all by) ::: December 05, 2006, 06:20 PM:

Mayakda, you're repeating a bit of insurance company propaganda. Malpractice suit awards aren't big or numerous enough to have a significant effect on the cost of malpractice insurance premiums. Various states have capped malpractice suit awards, and doctors in those states don't see lower premiums.

The premiums go up when the stock market deflates, and they don't come back down when the market improves.

A few years ago the Florida state legislature held hearings about this. When they called witnesses, they took the unusual step of having them testify under oath. Suddenly all the insurance company witnesses gave different information than they had before, and admitted that there hadn't been an increase in frivolous lawsuits, and there wasn't a shortage of doctors, and they didn't need the award caps to stay profitable.

#200 ::: Avram ::: (view all by) ::: December 05, 2006, 06:23 PM:

(Wow, I got carried away and failed to notice that this is a two-year-old thread.)

#201 ::: Teresa Nielsen Hayden ::: (view all by) ::: December 05, 2006, 08:31 PM:

It's still good. When have I ever not enjoyed one of your posts?

#202 ::: David Goldfarb ::: (view all by) ::: December 06, 2006, 03:31 AM:

There are still billboards around the SF Bay Area reading: "Spill Hot Coffee -- Win Millions. Play Lawsuit Lotto." Poor Stella Liebeck is never going to catch a fair break.

#203 ::: me ::: (view all by) ::: May 09, 2007, 09:44 AM:

Take a look at, too.

#204 ::: D Lacey ::: (view all by) ::: May 15, 2007, 02:31 AM:

I actually know two people who've brought one or more frivolous lawsuits. One is my sister in law who has sued several people for causing her whiplash when they rearended her car, because she drives in such a manner as to cause this to happen frequently. And she wears neck braces for fun, apparently. Nothing ever actually seems to be wrong with her. But she likes being take care of in hospitals.

The other is my friend's mother who sued her sister and her father's executor for supposedly causing his premature death. They did not, but the defense against the unsupported accusation cost most of both sisters' inheritance.

Both these women are mentally ill, one is depressive (maybe bipolar) and borderline-personality, and the other is schizophrenic. It's quite possible that most people who file frivolous lawsuits are mentally ill. Or it might be just my experience. But there's no shortage of mentally ill people, it seems, and our legal system makes it too easy for them to cause terrible consequences to everyone around them.

#206 ::: praisegod barebones ::: (view all by) ::: February 17, 2011, 01:38 PM:


Why have you chosen this particular thread to post this on?

#207 ::: Dave Bell ::: (view all by) ::: February 17, 2011, 01:51 PM:

I think a scan of the last couple of paragraphs of the primer article will be enough to see the link. But the whole thing is about the misrepresentation and outright fakery that's being used, and high-tech sock-puppets are a part of the process. They're a tool for injecting the falsehoods.

I'm just wondering what happens if one of the tactics is a fake left-wing exponent of violence, as a sort of black propaganda, which ends up provoking physical attacks on right-wing targets. "Look, the Left are doing it too," and then a prominent Republican gets gunned down.

#208 ::: albatross ::: (view all by) ::: February 17, 2011, 03:39 PM:

The tools don't really constrain the message, which I'm sure is tuned to some great extent by the client paying the bills. Wanna have a dozen people show up and turn your discussion of US foreign policy into a pointless 9/11 Truther rant-fest? Or have the pro-school-voucher story get flooded with comments praising school vouchers from a rather foul-mouthed White Nationalist perspective? Or would you like the numerate, careful argument about health care reform to be swamped with partisans posting low-content insults to each other, so the discussion doesn't take place? Hey, the customer's always right!

#209 ::: Rob Rusick ::: (view all by) ::: February 18, 2011, 01:33 AM:

James D. Macdonald @205: On the current open thread Paul Duncanson @523 posted a link to this earlier thread.

Having just come off of browsing from that link before reading your link ‚ÄĒ it's a little frightening. The earlier thread seemed to have featured a minor league sockpuppet array; the article you linked to describes a weaponized Muppet Show.

#210 ::: Kip W ::: (view all by) ::: December 13, 2011, 11:33 AM:

Tort Reform = Corporate Immunity is good! If that's "too strong," how about Corporate Privilege?

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