Ten years of serious injuries didn’t get them to turn down the temperature on their coffee pots. Two days’ coffee profits did.

Never doubt that it’s worth their while to lie to you. When you’re talking about really big corporations and really big money, it’s worth their while to lie to you very, very elaborately.

The profit motive is very powerful. Remember the Ford Pinto: The technology was available to make the Pinto a safer car...Ford alleged that it would cost $11 per car to add any sort of gas tank, fire prevention device. This fact is mentioned earlier in the cost analysis and like the other Ford cost facts, is also false. The fires that occurred in Pintos could have been largely prevented for considerably less than $11 a car...Crash-tests were conducted and there are reports showing that the Goodyear bladder worked very well...The total purchase and installation cost of the bladder would have been $5.08 per car. That $5.08 per car could have saved the lives of several hundred innocent people.

For those who say that large corporations aren't aware of the risks they're incurring, I can tell you, you're wrong. I work in the backoffice of a large investment bank, and while I can't mention specifics information I have seen at work, I can say that banks are very aware of ongoing or potential litigation against their clients (and those clients have been known to hold information from bankers).

It’s different now. There’s too much money at stake for that frontier to stay open. Deceiving us has become an industrial process.

So what is the solution? Setting up an anti-corporate disinformation corporation? Netviduals contributing to a massive online database? (Ack! I can't imagine indexing and maintaining that beast!) I don't have the answer, but if someone comes up with a good one, I'm there

Posted December 3, 2004 1:09 PM by Bruce Adelsohn

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?

Posted December 3, 2004 1:12 PM by BSD

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.

Posted December 3, 2004 1:27 PM by Jonathan Vos Post

Teresa: I first ran the organization Common Good

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

Posted December 3, 2004 1:29 PM by Tracina

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.

Posted December 3, 2004 1:36 PM by Kate Nepveu

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.

Posted December 3, 2004 1:48 PM by Will "scifantasy" Frank

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.

Posted December 3, 2004 1:48 PM by Moira

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.

Posted December 3, 2004 1:52 PM by tavella

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.

Posted December 3, 2004 2:04 PM by Michael Weholt

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.

Posted December 3, 2004 2:08 PM by ElizabethVomMarlowe

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.

Posted December 3, 2004 2:23 PM by fidelio

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"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?

Posted December 3, 2004 2:38 PM by TJC

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.)

Posted December 3, 2004 3:04 PM by Doug

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.

Posted December 3, 2004 3:15 PM by Steve Gillett

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.

Posted December 3, 2004 3:18 PM by Avram

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.

Posted December 3, 2004 3:18 PM by Kristen Hartmann

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.

Posted December 3, 2004 3:20 PM by jennie

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.

Posted December 3, 2004 4:04 PM by Ariella

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?

Posted December 3, 2004 4:13 PM by Dr. Maturin

TJIC:

Either every opinion is equally legitimate, or ... well, not.

If they're not, then I suspect Ms. Nielsen-Hayden believes her brother's opinion was not equally legitimate in this case---for reasons of common sense backed up with her available experience, I would guess.

If they are, then it's still perfectly legitimate to suggest that her brother wasn't worth talking to on this, and, in fact, that he is made entirely of pineapples and has a choir of dancing angels on his head.

Not that I think she is automatically right! Just, sometimes it's *okay* to think that people who disagree with you are fundamentally mistaken, even if you should leave room for those random discoveries that one is wrong. ^_^

Rebecca

Posted December 3, 2004 4:18 PM by Rebecca Borgstrom

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...

;)

Posted December 3, 2004 4:27 PM by Greg London

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.

Posted December 3, 2004 4:43 PM by Greg London

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.

Posted December 3, 2004 4:45 PM by Avram

Easy, Avram. "Screw the little guy."

Posted December 3, 2004 4:50 PM by Linkmeister

They are trying to take away our right to sue.

Posted December 3, 2004 4:57 PM by TomB

Nah, linkmeister, we need something that identifies the concept, that can be used in news broadcasts and editorial pages and survey questions.

"right to sue" is a step in the right direction, but the problem is that lots of people already don't like the idea of lawsuits. Lawsuits are something that some other guy files, some loser who wants some free money. Until they themselves find grounds for a lawsuit, of course, but how many people think that'll ever happen to them until it actually happens?

I'm looking through Thesaurus.com's list of synonyms for "redress". "Compensation" has potential. It's long, but it connotes fairness. The corporations want to take away your right to fair compensation in the courts. "Compensation caps"? "Compensation limits"? Not quite there yet.

Posted December 3, 2004 5:07 PM by Avram

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.

Posted December 3, 2004 5:18 PM by lightning

Tort Reform: So You Know Who Pays.

Posted December 3, 2004 5:22 PM by Dave Bell

"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.

Posted December 3, 2004 5:23 PM by Mike Jones

"Tort Reform" == "Corporate Immunity"

Posted December 3, 2004 5:54 PM by Alex Cohen

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?

Posted December 3, 2004 6:15 PM by Randolph Fritz

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?

There's a word for this; it's called lying, and it stinks in the nostrils of decent human beings.

Posted December 3, 2004 6:19 PM by Patrick Nielsen Hayden

(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.)

Posted December 3, 2004 6:21 PM by Patrick Nielsen Hayden

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.

Posted December 3, 2004 6:37 PM by JimT

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?

Posted December 3, 2004 6:38 PM by Andrew T

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.

Posted December 3, 2004 6:52 PM by Chris S.

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.

Posted December 3, 2004 7:01 PM by julia

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).

Posted December 3, 2004 7:08 PM by julia

"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.

Posted December 3, 2004 7:17 PM by Dave Trowbridge

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.

Posted December 3, 2004 7:52 PM by TomB

Unfortunately, there is far too much of this kind of crap going on. When I was working/volunteering for a local environmental group fighting the proposed high-level nuclear waste dump at Yucca Mountain, we regularly battled large, well-funded, national entities passing themselves off as environmental/consumer-rights groups only to discover that they were actually lobbying *for* the dump under the guise of appealing for safety or "clean, efficient power for all."

We discovered that the fastest way to debunk a group like this is to look at who is on its Board of Directors/Advisors. When you've got a group calling itself "Grassroots Enterprise" lobbying for the dump with John Sununu on the board of advisors, something isn't right.

There's also a lot of obfuscation in the click-to-donate world. Lots of people think every click goes straight to charity, but in reality some of those sites are operated as for-profit entities in which only a small percentage goes to charity. I used to try to keep track of these sites here: http://kimberlychapman.com/charitycheck/charitycheck.html but had to stop due to lack of time to do it properly.

Posted December 3, 2004 8:07 PM by Kimberly Chapman

Tort reform: never having to pay your victims.

Posted December 3, 2004 8:18 PM by enjay

"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.

Posted December 3, 2004 8:31 PM by Andrew Case

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!"

Posted December 3, 2004 8:33 PM by DonBoy

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.

Posted December 3, 2004 8:37 PM by Teresa Nielsen Hayden

A plug for PR Watch and Disinfopedia seems appropriate.

Posted December 3, 2004 8:42 PM by Grant

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).

Posted December 3, 2004 8:50 PM by Jonathan Vos Post

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...

Posted December 3, 2004 8:59 PM by Greg London

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.

Posted December 3, 2004 9:17 PM by Graydon

"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."

Posted December 3, 2004 9:22 PM by Randolph Fritz

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.

Posted December 3, 2004 9:45 PM by Graydon

Graydon,

It could be because I've been at work for about 12 hours now, but I just cant get what you're trying to say in your "Liberatarianism philosophy" post, other than that growing up on a farm is good in some way that I can't put my finger on, except that I think it has something to do with the quite-real possibility of losing a finger on said farm. could you rephrase that for those of us who are fried of brain?

Posted December 3, 2004 9:59 PM by Greg London

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.

Posted December 3, 2004 10:03 PM by Trent Goulding

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?

Posted December 3, 2004 10:31 PM by Teresa Nielsen Hayden

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!

Posted December 3, 2004 10:49 PM by fidelio

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.

Posted December 3, 2004 10:58 PM by Kate Nepveu

Great post, Teresa.

However, while some individuals try to cheat the system (and succeed at times), corporations do it more often and at greater cost.

I'm currently working for an environmental non-profit whose job is to help individuals deal with corporations (sometimes, yes, to sue those corporations). We get to deal with stuff like this:
http://www.pennfuture.org/work/water/fishkill

An individual trying to cheat a corporation typically can't do the kind of damage to society that a run-amuck corporation (or politician) can.

Posted December 3, 2004 11:09 PM by Laurie Mann

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.

Posted December 3, 2004 11:14 PM by bad Jim

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.

Posted December 3, 2004 11:30 PM by Ariella

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".

Posted December 4, 2004 12:09 AM by Steve Gillett

From Salon.com War Room today: http://www.salon.com/politics/war_room//index.html

"George W. Bush: Our Leader."

That message, stamped in looming letters alongside the president's smiling mug, currently graces several billboards in Orlando, Florida, along Interstate 4. . . . The billboards in question are controlled by media juggernaut Clear Channel Communications, and also carry a tag saying that the contents are a "political public service message brought to you by Clear Channel Outdoor."

At the same time, the networks decline advertisements from the United Church of Christ which indicate that any and all are able to attend their denomination without fear of censure -- the ad is too political.

I don't think corporate America is even trying to hide what it is doing. The laws passed in the early 70's after the scandals of CREEP and Watergate are, like the Geneva Convention and in the words of our new Attorney General nominee, quaint. By any other name, they are propoganda, and they are working. Our last election shows that you can fool most of the people for the time necessary to win.

Winning is everything baby . . .

Our Governator out here in Caleefornia said he wanted to make Caleefornia a mecca for business again. In fact, as a stunt, he has driven his Hummer to Nevada to help pack up and load the property onto trailer trucks of businesses relocating to the state. So for him, lowering the dollar amout of care patients in the workers compensation plan obtain for rehabilitation is making Caleefornia a business friendly state.

Hmm. Maybe it's just as well the social conservatives don't like him because of his libertine past? Otherwise they'd be clamoring for a President Schwarzenegger after a "quick" mutilation of the Constitution.

I practice criminal defense law exclusively, but my clients, indigents all, often have no recourse for civil redress of their claims. Loss of contingency fees would mean they would never be able to hire a lawyer to present their claims. Their poverty does not equate with dishonest intentions. Poor people can and often are grieviously injured due to negligence (sometimes gross) of companies and government institutions. The law teaches that we try to make them whole. Punitive damages are for punishment and serve as object lessons.

Thinking about punitive damages in that light, you might consider the justifications proffered for the three-strikes and death penalty laws in many jurisdictions. My personal favorite is deterrence. Well a rationale for punitive damages is deterring bad behavior by businesses.

Posted December 4, 2004 1:37 AM by Betty

the weakness tax.

Posted December 4, 2004 2:33 AM by bryan

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...

Posted December 4, 2004 2:51 AM by Jordin Kare

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.

Posted December 4, 2004 2:59 AM by Sally Beasley

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.

Posted December 4, 2004 3:52 AM by Nancy Lebovitz

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?

Posted December 4, 2004 5:37 AM by Avram

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?

Posted December 4, 2004 7:21 AM by Mris

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

Yes.

Posted December 4, 2004 7:41 AM by Jill Smith

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.

Posted December 4, 2004 7:44 AM by Rebecca Borgstrom

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.

Posted December 4, 2004 9:33 AM by Epacris

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.

Posted December 4, 2004 10:50 AM by Nancy Lebovitz

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?

Posted December 4, 2004 10:57 AM by Charlie Stross

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.

Posted December 4, 2004 11:10 AM by xeger

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.

Posted December 4, 2004 11:25 AM by Graydon

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.

Posted December 4, 2004 12:07 PM by Jules

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.

Posted December 4, 2004 1:02 PM by Steve Gillett

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.

Posted December 4, 2004 1:16 PM by Kimberly

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.

Posted December 4, 2004 1:29 PM by Kimberly

"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.

Posted December 4, 2004 1:35 PM by Randolph Fritz

"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.

Posted December 4, 2004 2:59 PM by Patrick Nielsen Hayden

"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."

...so, 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.

Posted December 4, 2004 3:10 PM by Paul Arezina

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.

Posted December 4, 2004 3:24 PM by Magenta

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 ...

Posted December 4, 2004 3:35 PM by Charlie Stross

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 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 . . . ."

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 Commo