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Great Debate on Tort Protection for Gun Manufacturers:

The Legal Talk Network hosted a debate on the Protection of Lawful Commerce in Firearms Act. Participants were Master Conspirator Eugene Volokh, Josh Horowitz from the Educational Fund to Stop Gun Violence, and me. Josh and I spoke the next day, and agreed that the debate was informative and cordial--far superior to the angry exchange of talking points that sometimes characterizes debates on gun control. You can listen to the debate in WMF, or download it in MP3.

frankcross (mail):
Good discussion. I really don't know a lot of details, but I'm dubious.

So much of the criticism of the legislation boils down to not liking the theory or the results. But the genius of our common law system, of which the benefits are great, is that we trust to individual juries to make the right decision in individual cases. In France, say, a lot of trust is put in legislatures and law professors to make these decisions. Our system works better. The legislation is essentially a mistrust of the legal system.

Which gets to the second point. The defense of the legislation seems to prove way too much. If you can't trust the courts in these cases, why trust them anywhere? Eugene talks about interstate effects, which is true but applies across the board to nearly all litigation and makes a case for eliminating the common law. David talks about abuses by municipalities, but if mayors are corrupt and abuse litigation, that calls for much broader legislation than this.
10.29.2005 2:59pm
Larry Faria (mail):
If you believe the anti-gun lobby is using the legal system as an alternative method of gun control, by bankrupting manufacturers with litigation expenses, then you have to believe that both the legislative and judicial systems are being perverted: the legislative by making an end run around the process of formulating public policy, and the judicial by using it to form a de-facto public policy. If this legislation doesn't preserve the integrity of both, what alternative does?
10.29.2005 4:00pm
Rico567 (mail):
What's good for one is good for all. If gun manufacturers can be sued for the outcome of selling guns, I can sue the manufacturer because I am slashed by the mad knife-wielder, amputate my toes with the lawn mower, yadda-yadda. Beware rash litigation, diaper manufacturers!
10.29.2005 5:33pm
Hank:
Rico567: you don't understand the new law. Under the common law, gun manufacturers and sellers can be sued only for negligence or for selling a defective product. The bill does not affect defective product suits, but it bars negligence suits, with five exceptions. Gun manufacturers and sellers are rarely negligent when a criminal uses one of their guns to shoot someone. But they can be, and this law makes them no longer liable for their negligence unless one of the law's exceptions does not preclude the suit. I'll give you two real-life examples of negligence that the new law would allow defendants to get away with. One was the manufacturer, in the state of Washington, of the rifle that the D.C. sniper used a couple of years ago. The rifle had been stolen from a seller whom the manufacturer allegedly knew kept such poor inventory that it didn't know that the rifle was stolen. The manufacturer settled the suit. Another was a manufacturer in Massachusetts who allegedly hired an employee without checking his background and learning that he was a crack addict with a theft record. The manufacturer also failed to use metal detectors to prevent its employees from walking out with gun parts. This suit is pending and so will presumably be dismissed as a result of the new law.
10.29.2005 6:22pm
Ross Levatter (mail):
Is it Hank's contention that if an employee of the Swiss Army Knife Company leaves work with a stolen Swiss Army knife and harms someone with it:
a) the employer would be liable under current laws of negligence?
b) that this is a good and reasonable suit?
Ross L.
10.29.2005 7:20pm
Hank:
Ross: It depends on the facts. I would not find the knife company negligent for failing to install a metal detector that every exiting employee must pass through every day because that does not seem like a reasonable requirement. (Maybe it would be for a gun manufacturer; we'd have to hear testimony on each side to decide.) But if the knife company had heard the employee say that he intended to stab someone as soon as he got off work that day, it would be negligent if it took no action to prevent it. But the point isn't to quibble about particular fact situations. It is to recognize that the law has only held gun manufacturers and sellers liable for the acts of third parties when the manufacturer or seller was negligent. It no longer does, with five exceptions.
10.29.2005 7:48pm
PersonFromPorlock:
c) and what about the Swiss Army itself? ;^)

I'm really against this law in principle but willing to make an exception in fact. When the cost of defending a lawsuit is enough to destroy the target regardless of the target's responsibility, responsibility becomes irrelevant... which is an absolute perversion of what suits are all about.

But I would prefer to see some law that severely penalized nuisance suits generally, and everyone responsible for bring them.
10.29.2005 7:54pm
Hans Bader (mail):
D.C. law doesn't require negligence for gun manufacturers to be liable. It holds them strictly liable for crimes committed in D.C. using guns purchased lawfully anywhere in the country, not just in D.C.

My understanding is that the congressional legislation also overturns D.C.'s law.

So the congressional legislation doesn't just immunize negligent gun manufacturers. It also protects completely innocent manufacturers preyed upon the D.C. Council, with the acquiescence of the D.C. Court of Appeals, which supinely upheld the D.C. measure against a strong dormant commerce clause challenge.

Congress's law is a valid exercise of its power under the Commerce Clause to protect an interstate industry.
10.29.2005 7:57pm
Beerslurpy (mail) (www):

It depends on the facts.


No, it doesnt. At least it shouldnt. Failing to foresee every possible harm that your inaction could cause should not constitute negligence.

If employees are stealing firearms from your gun factory and it can be proven that you have been informed of this, it is arguable that you would be negligent for not taking at least some small step to stop this from continuing.

If you fail to insist upon 0 percent misallocation amongst your resellers, how is this negligence? Sure, you could have done something, but that seems to be a pretty threadbare excuse for a lawsuit, especially in light of existing rules that govern the fiearms industry...

Federal, state and local law already create procedures which firearms dealers and manufacturers must adhere to, even if they have a better strategy for abating accidental harms from firearm misallocation. If they do not follow these procedures, they will be subject to significant criminal penalties, even if they could show that a tortious harm might have arisen from following that law.

These civil suits attempted to introduce new procedures and restrictions through legal settlements. Regulating the interstate sale of firearms is arguably beyond the reach of the courts, let alone beyond the reach of a non-federal legislature.

Part of me wonders if there isnt some more elegant way to put a stop to these abuses of the court system, but I cant think of one at the moment.
10.29.2005 8:17pm
big dirigible (mail) (www):
How would a manufacturer know that a distributor or retailer keeps poor records? The record-keeping requirements are set by the 1934, 1967, and 1986 Federal laws, as subsequently amended. The federal firearms license (usually a type 1, for wholesalers, retailers, and gunsmiths - there are nine different FFLs, last I heard) which the destributor must have in order to engage in the business is given when the distributor pays the fee and submits to a background check by the Justice and Treasury departments. Until the distributor loses the license or it naturally expires, a manufacturer can ship firearms to them - and why not? They have official government approval, after all. If law enforcement authorities decide that the license is being abused the distributor can lose it, and can no longer engage in the firearms business. But until that event, the fact that they can engage in business at all means that they satisfy government standards to do so, by virtue of the license. This is all that the manufacturer can normally see - there are unlicensed firms to which he can't sell his product, and licensed firms to which he can. The manufacturer must have a copy of the distributor's license before shipping product, to verify that the distributor is indeed licensed, and must keep it on file. If the manufacturer sells only to licensed firms (as he is obligated to do by law), what more can be reasonably expected? Should the manufacturer fail to adhere to all this licensing BS, then I could see negligence - as well as criminal charges.

If a manufacturer has an employee (or a visitor, or anyone else) who is stealing firearms and removing them from the premises, he has failed to ensure that his product goes only to federally licensed wholesalers or retailers, and has therefore violated one or more Federal laws.

All of this is quite distinct from the problem of manufacturers being sued for the actions of criminals.
10.29.2005 8:23pm
big dirigible (mail) (www):
Sorry, 1968 law, not 1967 - the Gun Control Act.
10.29.2005 8:26pm
frankcross (mail):
This discussion doesn't show much awareness of the content of the common law. There should be little danger of the ridiculous outcomes suggested above, unless one is mistrustful of judges and juries. The common law would never demand "0 percent misallocation."

The trouble with legislation is that it is a blunderbuss; it can never have full information about the underlying facts or foresight. The benefit of common law is Hayekian. It decides case-by-case, with great detailed information on each case. This is why Hayek preferred markets to legislation and preferred the common law to legislation.

Now, these benefits may admit of exceptions. If the mere costs of filing answers and motions would bankrupt the gun industry, that would be an argument. But I see this case much asserted but I'm not seeing the evidence. Generally, the free market effect of such litigation would be higher gun costs rather than bankruptcy.
10.29.2005 9:52pm
Brett Bellmore (mail):
The problem that required the law, Frank, was not that they were winning these stupid lawsuits. You're right, they run contrary to legal precident, and the chance of their winning one was quite low. (Though it's never zero.)

The problem was that their intent was to coerce the industry into complying with demands, by the cost of that successful defense. And it might have worked, given the industry's remarkably shallow pockets, and the fact that the judges weren't awarding court costs to the victimized companies.
10.29.2005 10:21pm
Beerslurpy (mail) (www):
Frank, the cases were getting laughed out of the courtrooms by judges and juries alike. But the cost of successfully defeating these suits was tens of millions of dollars.

The cities filing these suits rightly realized that since the gun industry doesnt have deep pockets, they can easily outspend them. Repeat ad infinitum until they start settling or go out of business.

The gun industry harassment suits are textbook guerilla warfare- attack not to win, but to wear down your opponent. It's an abuse of the system as much as IEDs and poison gas are a perversion of the rules of war.
10.29.2005 11:45pm
frankcross (mail):
As I have said, I'm not familiar with the details. But I want to see the proof of these claims. And if they are true, there are better responses. For example, a fee-shifting rule for these cases should solve the problem, no?
10.29.2005 11:56pm
David M. Nieporent (www):
Another was a manufacturer in Massachusetts who allegedly hired an employee without checking his background and learning that he was a crack addict with a theft record. The manufacturer also failed to use metal detectors to prevent its employees from walking out with gun parts. This suit is pending and so will presumably be dismissed as a result of the new law.


Nothing in the law preempts such a suit. That having been said, if such a suit were successful, it would be yet another example of the need for tort reform. Since when does one have a duty to conduct background checks on every employee one hires? Since when does one have a duty to search employees without cause to ensure they haven't stolen anything?

(Anyway, under traditional principles of common law, negligence suits against manufacturers would fail because a crime is an intervening act; manufacturing a weapon is not proximate cause. (Of course, modern tort law effectively does away with proximate cause -- see the recent World Trade Center lawsuit.))
10.30.2005 12:42am
Brett Bellmore (mail):
Frank, I'll agree that "loser pays" would be a better response. If the judicial system weren't broke, we wouldn't NEED a legislative response, however, as the judges already have the authority to impose court costs on people who bring frivolous lawsuits, which these most assuredly were. If the term "abusive" isn't a better fit...

But judges virtually never exercise this power. Perhaps too much solidarity within the legal profession... It's not in the profession's interest to discourage these lawsuits, the lawyers make money on both ends, win lose or draw. THEY only lose if the suit isn't filed.
10.30.2005 1:07am
Beerslurpy (mail) (www):
Of course, modern tort law effectively does away with proximate cause

Not to flaunt my ignorance too obviously, but when did we transition from the "traditional" to the "modern" era in tort law? Is there some seminal case I can turn to?
10.30.2005 1:23am
justanotherguy (mail):
I can't tell you of a specific case that marks the change from traditional tort ra to modern tort era, but it has certainly happened. The World Trade Center Lawsuit is just the most recent example of ignoring traditional elements of a tort and simply going after whomever has the $ or whom you want to harass.

If Judges would exercise any amount of restraint and prevent these atrocities from getting to juries, maybe we wouldn't be in this situation... but we are... The civil system is no longer even close to a reliable system for what was traditionally thought to be justice... now it is a of lottery and a form wealth redistribution.

When people who are injured and have tort claims find that they cannot get a reasonable settlement because the legislatures have so limited the courts in tort (either like this legislation or the many limitations to tort recovery)... thank the judges who have allowed it. We are getting to states that are either tort hell for the companies or the other way and are tort hell for those who find any claim severly limited by tort reform regardless of injury and fault...
10.30.2005 1:45am
Beerslurpy (mail) (www):
How does this scenario sound?
A few plaintiffs manage to win Santa Claus settlements from a few rightfully targeted companies that had committed a severe intentional tort (like the famous exploding ford gas tank case). I'm guessing some lawyers saw this and realized that the key elements were "emotionally charged tort and deep pockets" and that this was actually more important than having an awesome case. All you have to do is keep throwing darts at the board until one sticks. To raise your percent effectiveness, begin maneuvering the cases to appear in jurisdictions friendly to such lawsuits and prone to awarding enormous damages.

The worrysome part is that I am begining to realize that no case law really had to change for this to happen- all that is needed is a judge tolerant of loosely construed chains of culpability and a defendent with deep pockets and eventually you will start getting generous wins. The system wasnt broken until someone broke it, but there is clearly no safeguard against gaming the system as a means of corporate raiding (in the sense of "raiding" as the vikings did it).

Didnt they pass a law in the last few years that limited multi-state torts to being heard in federal court? That will probably help with the jurisdiction shopping. Did it pass? I wish there was some way to curtail excessive rewards without unfairly limiting the ability of the jury to punish genuine wrongdoing on the parts of wealthy and unrepentant defendents. The problem is a dont see any way of helping judges/juries better distinguish who is to blame for a tort and what the appropriate amount is, especially when these parties have already shown they lack the ability to act as reliable safeguards. The end result might be limitations on damages, for better or worse.
10.30.2005 1:05am
Veggie_Burger (mail):
I'm not sure who "won" the debate on the merits, but of course my sympathies lie with Mr. Horowitz who is fighting to stop the gun insanity in this country. I'm very suspect of the shield law that was just signed by Bush. As far as who won the debate on style, I'm afraid I wasn't impressed with Eugene's voluble style. I had to turn down the volume on my computer's speakers every time he started to talk. No one could get a word in edgewise either. Horowitz was calm, cool, and collected throughout and had a good command of the relevant law as well. Eugene also kept harping on an analogy that seems only superficially plausible to me. He said suing gunmakers for the actions of criminals would be the same as suing Coors for selling beer to a pub located near a college campus with the predictable result of an underage drunk driver killing somebody. But what if Coors put the college's logo on the beer can, or promoted the school's football team with posters plastered around the bar or on campus? That would seem to be marketing to students in particular, most of whom are known to be underage. Don't you remember that cigarette companies used similar marketing tactics with the "Joe Camel wearing sunglasses" ads to convince kids that smoking was cool? Maybe gun manufacturers also market to violent, terrorist groups like neo-nazis. Why then should the gun makers not be held at least partially responsible when some neo-nazis goes on a rampage with an assault rifle at a Jewish day-care center. Why should gunmakers automatically be off the hook for their unethical behavior? Besides, what ever happened to getting one's day in court in this country?
10.30.2005 1:13am
Beerslurpy (mail) (www):
Lets take apart your post:

-gun insanity? What gun insanity? Owning guns for sport and self defense? Oh how terrible and crazy. I'll ignore your comments about the speaking styles of the guests (can you get any more vapid?) and go right to the meat of your arguments.

-comparing guns to booze is perfectly valid. Gun and booze manufacturers both sell their wares to licensed and strictly regulated dealers who then verify the identity of and sell to adult customers. All analogies have weak points, but you picked a bad one- marketing to people who will misuse products.

Although I have never seen a gun billboard in my entire life, I will concede that maybe Glock is running full page inserts in the Chicago tribune without me knowing of it. In any case, the California case provides an excellent example of why your argument doesnt stand up to examination- because the suits arent about marketing.

The California case was about Glock's actions in another state, in which their allegedly tortious action was to sell too many guns to the police, which they then resold to private parties. Not only did Glock obey the State and Federal laws, but they sold firearms to the State itself! How Glock could possibly be held responsible for the manner in which the government disposes of its weapons, I cannot guess.

-Gun makers dont market guns to criminals or murderers. Your neo-nazi line is basically an attempt to smear gun owners and the gun industry by association with people who misuse guns. I challenge you to find a single instance of a gun manufacturer marketing their guns as implements suitable for committing crimes or inducing anyone to commit a crime.

In summary, your post is entirely at odds with the facts.
10.30.2005 3:35am
Guest2 (mail):
1. Frank Cross has articulated very well the same concerns that I have about the reasoning behind the Protection of Lawful Commerce in Firearms Act. If the reasoning behind the Act makes sense, then why shouldn't, for example, auto manufacturers be entitled to the same kind of legislative insulation from a large subset of tort claims? The Act seems to take us further down the road toward a comman-and-control economy, with Congress deciding industry-by-industry what claims can and can't be brought. Maybe the fact that gun ownership is tied to a constitutional amendment will enable us to treat gun manufacturers as a unique case; I don't know.

2. In the interest of providing some background information for those in this discussion not so familiar with the legal system. . . . First, even though litigation is extremely expensive, defending one frivolous lawsuit will not bankrupt a company (unless it's already in terrible shape or is a mom & pop without insurance). Defending lots of frivolous suits at the same time could, I suppose, drive a healthy company under, but even there I'm a bit doubtful, at least without some good data. There are economies of scale in defending lawsuits as there are in most other things. And if the problem is, as someone mentioned above, the gun industry's shallow pockets, then it seems that (given the basic demand for guns) the market would eventually respond with some bankruptcies, consolidation in the industry, and higher prices.

Second, bankruptcy does not equal death. It's a legal option that a company (or individual) has when it/he/she is approaching insolvency. The operations of a bankrupt company are very often sold intact to a new owner that thinks it can avoid the mistakes that the previous owner made. Of course, it's possible that the legal penalties associated with a particular line of business could be so great that nobody could operate in that line at a profit, but again, given the basic demand for guns, I'm doubtful that we're anywhere close to that point in the gun industry.

Third, in answer to the question about tort law, there is not one case (or series of cases) in which the law shifted from "traditional" to "modern." (And even whether there has been such a shift is something on which reasonable minds could differ.) In any event, you might try taking a look at Lawrence Friedman's American Law in the Twentieth Century. Although the author has a significant lefty bias, he is a solid historian.
10.30.2005 5:54am
Hank:
David Nieporent, quoting my previous posting, writes that nothing in the new gun liability law preempts this suit:

Another was a manufacturer in Massachusetts who allegedly hired an employee without checking his background and learning that he was a crack addict with a theft record. The manufacturer also failed to use metal detectors to prevent its employees from walking out with gun parts. This suit is pending and so will presumably be dismissed as a result of the new law.

David: Which of the six exceptions in the bill would cause the suit not to be preempted? You will find that the answer is that none of them does.
10.30.2005 7:32am
Brett Bellmore (mail):

from a few rightfully targeted companies that had committed a severe intentional tort (like the famous exploding ford gas tank case).


Frankly, as an engineer in the automotive industry, I take severe exception to characterizing that design as a "severe intentional tort". The decision to not make that change was perfectly legtimate, based on cost/benefit analysis. Just because juries don't LIKE cost/benefit analysis, doesn't mean that it isn't proper engineering practice. Or have you put up hand rails on the sidewalk in front of your home? I'm sure it would make the sidewalk safer, and who cares how much it would cost....

Guest2, so bankruptcy doesn't equal death? Big deal, since when did it become ok to harm somebody by abusive practices, so long as you weren't quite able to kill them? I find the fact that defendants who prevail in either lawsuits or criminal trials aren't made whole afterwards to be a horrible moral flaw in our legal system; Essentially lawyers have been granted the ability to cause people terrible financial harm at will, regardless of their innocence. And I HAVE been threatened at least once with an abusive lawsuit, because I said something a lawyer didn't like.

Loser pays is a moral imperative, which ought to apply to criminal as well as civil law. What's the point of being innocent, if you can still be subject to hefty "fines"?
10.30.2005 7:58am
Robert Lyman (mail):
why shouldn't, for example, auto manufacturers be entitled to the same kind of legislative insulation from a large subset of tort claims?

If cities start spending taxpayer dollars to sue car makers for the cost of accidents caused by drunk drivers, then the auto industry should probably get that protection.

Personally, I think the gun suits (any hypothetical auto-industry suits) should be laughed out of court; if judges don't want to do the laughing, there's no reason why Congress can't instruct them to laugh.

I see nothing wrong with legislators stepping in to alter (either by imposing or removing) liability for particular acts. Surely Congress could (within its constitutional jurisdiction) create a cause of action for a harm which the common law did not recognize; there is no reason it cannot remove one which is, in Congress' judgement, being imposed improperly by the common law.

Finally, while it is possible that there would be some injustry consolidation and higher prices, that in itself is somewhat objectionable--why should some creative plaintiffs impose higher prices on innocent parties based on bogus theories? Besides, the whole point, as the plaintiffs frequently opely declared, was to force gun makers to comply with onerous regulations (under consent decrees, for instance) that were too unpopular to pass through Congress. If this Act represents a Congressional usurpation of judicial authority, do not the original suits represent a usurpation of legislative authority by private parties and judges?
10.30.2005 8:12am
Hank:
"The decision to not make that change was perfectly legtimate, based on cost/benefit analysis. Just because juries don't LIKE cost/benefit analysis, doesn't mean that it isn't proper engineering practice."

The question isn't whether it is proper engineering practice; the question is whether it is proper legal practice. In design defect cases, a manufacturer is liable if it could have used a feasible alternative design. Cost is an aspect of feasibility, and if any jury found that a tank was a feasible alternative design for an automobile, its verdict would be overturned. Likewise if a jury found that a homeowner had to put up handrails on the sidewalk in front of his or her home.
10.30.2005 8:30am
Robert Lyman (mail):
Returning to the quesiton of whether we "trust the courts" (from the earliest comments)...

Juries are valued because of their practical, real world experience. We trust them to decide what a reasonable way to operate a car on the highway is, or what a proper level of maintenance for an apartment complex is, etc. These are the sorts of things with which jurors generally have experience, and are well-equipped to decide what a "reasonable driver" or "reasonable landlord" would do.

On the flip side, few jurors understand engineering or the business of building cars well enough to make an informed judgement. The "reasonable engineer" or "reasonable surgeon" or "reasonable drug company executive" is not a concept they have easy access to.

So perhaps it is not nuts to think that the jury system is poorly equipped for some of these cases.

I don't have a solution, but I don't see any great contradiction in valuing juries in ordinary cases but thinking them largely unqualified in many important types of cases.
10.30.2005 8:45am
Andy Freeman (mail):
> Second, bankruptcy does not equal death. .... The operations of a bankrupt company are very often sold intact to a new owner that thinks it can avoid the mistakes that the previous owner made.

However, the "mistake" in this case was being a gun manufacturer.

Hank is cherry-picking his cases. The vast majority of the lawsuits involve manufacturers that did nothing wrong. They sold to heavily regulated (at both the state and federal level) distributors who then sold to heavily regulated dealers. In some of the cases, the gun was sold other times. The only way to avoid liability in these cases is to go out of biz.

At least some of the cases claim that the manufacturer is liable because they sold "too many" guns, the theory being that if they'd sold less, guns wouldn't be involved in crime. (If anything, the exact opposite is true.)
10.30.2005 8:52am
Hank:
If I'm cherry-picking my cases, and only a small minority of plaintiffs have legitimate claims, that doesn't justify leaving them in the cold. There are other ways to deter frivolous suits, such as loser pays. The new statute (pardon the cliche) throws the baby out with the bathwater. Other federal tort reform statutes have capped non-economic or punitive damages, eliminated joint and several liability, and taken other steps short of denying legitimate plaintiffs the right to sue.
10.30.2005 9:06am
Brett Bellmore (mail):
Loser pays is definately the preferable way to go, but it has this little drawback: It would result in a substantial reduction in the number of lawsuits, reducing the income of both plantifs' and defendants' lawyers, and so the slightest hint that anybody might try to implement it causes the entire legal community to go berserk. It's just not politically feasible at this time.

And the only baby that got thrown out with THIS bathwater, was Rosemary's baby. The law does not, so far as I can tell, eliminate even one legitimate cause for action.
10.30.2005 10:13am
AppSocREs (mail):
People keep refering to these as frivolous lawsuits. They may have been unjustified lawsuits, but they were not frivolous. They were a carefully designed strategy, crafted in the highest ranks of anti-gunners, and carried out by anti-gun politicians. When the anti-gunners realized that a large enough majority of Americans were opposed to their goals to ensure that these goals could not be obtained by legislation, or other more open means, they turned to subterfuges like this to remove guns from the hands of law-abiding Americans.

By the way, I first got wind of this strategy from the highest ranking gun-policy maker in the Clinton DOJ when we were both houseguests at a mutual friend. Needless to say, she was adamantly anti-gun. I have to add that "Democratic Party" is an oxymoron as long as that party is the home for anti-democratic elitists like her and her ilk. They are destroying the party. As one instance, Gore lost his home state, Tennessee, in large part because he and Clinton reneged on explicit campaign promises that they made to the NRA. Had not Gore lost Tennessee he would have carried the election.
10.30.2005 10:55am
Ken Willis (mail):
Reading the posts here has got me to thinking. Isn't it high time we get those farmers who are growing all that corn that is being distilled into whiskey and those vinyards in Napa Valley that are stomping on grapes that are being fermented into wine and being sold to retailers and saloon keepers who are selling it people who drink the stuff and then go out on the highways and KILL us? Of course, we can't let the manufacturers of the automobiles off the hook either. Let's put'em all out of business. Then we'll be really safe and life will be great. No cars, no wine, no guns, and we'll be free at last. Just another word for nothing left to lose.
10.30.2005 11:18am
JosephSlater (mail):
Getting back to the End of Proximate Cause As We Knew and Loved It, I'm curious as to why the 9/11 cases are an example of that. If the breach of duty is having lousy security screening at an airport, isn't the foreseeable harm from that breach that the plane might get hijacked and passengers be injured? It was never the rule that the particular event (flying into the WTC) had to be foreseeable, just the type of harm. And it hasn't been the rule in quite some time that the intervening criminal acts of others always broke the proximate cause chain.
10.30.2005 11:22am
frankcross (mail):
This is generally a blog that draws intelligent commenters. But I don't blame them for being wrong, you can't know everything. But people are awfully cocky about things that are pretty clearly wrong, IMHO. The common law and juries get things wrong, but they have a good overall track record and they haven't abolished proximate cause (plenty of cases are dismissed for failure to establish proximate cause).

Brett, the federal government has a variety of fee-shifting laws that vary the American rule. They generally shift fees to plaintiffs but often allow for shifting to defendants. The federal government could adopt that. I'm not generally a fan of fee-shifting but I can see a good case for it when the government is the plaintiff. Because government-sponsored litigation can be abused.
10.30.2005 12:09pm
Hank:
"When the anti-gunners realized that a large enough majority of Americans were opposed to their goals to ensure that these goals could not be obtained by legislation ..."

Can anyone cite any legitimate poll results? I thought it was a commonplace that the large majority of Americans support stronger gun control, and that legislators don't take their wishes into account because of the NRA's lobbying strength. Is that true or not?
10.30.2005 12:21pm
juris imprudent (mail):
Frank-

Given that the purpose of the lawsuits now prohibited was not to exercise a normal tort with recovery for injury, but to impose regulation on the gun industry that was not achievable via legislative means, I wonder why you are so concerned with the effect of this law. Are there similar legal plans aimed at other industries and thus you don't wish to see this avenue of action foreclosed? Do you in general disagree with the notion that third party criminal actions are not the fault of a manufacturer?

Hank-

I really wouldn't care what "the polls" say - in either direction. We enact legislation (at least federally) through representation not referendum. The muscle that the NRA has is that representatives know it translates into votes at election time. Gun owners tend to be regular voters - as opposed to the samples (responding to typically loaded questions) in polls.
10.30.2005 12:48pm
frankcross (mail):
juris, first you are asserting a "given that" clause that is unproved. Second, even if you were correct, the legislation abolishes causes of action that are not within your "given that" clause.

It is indisputable that third party criminal actions are not the fault of the manufacturer in the vast majority of cases, maybe all cases. However, there are some limited cases where they could be. For example, the allegations are that manufacturers tacitly (maybe openly) encouraged gun retailers to sell to criminals in order to promote sales of their guns. If a manufacturer is affirmatively promoting sales to criminals, that could be a viable cause of action. People have ridiculed the alcohol hypos, but if an alcohol manufacturer is aggressively promoting its product to underage drinkers and it could be proved that this in fact caused underage drinking, that could produce a viable claim.
10.30.2005 1:11pm
Hank:
juris imprudent -- you may be right, but that's not necessarily the whole story. Doing the NRA's bidding may translate into votes for another reason too, which is that the NRA's campaign contributions pay for campaign advertising.
10.30.2005 1:12pm
Veggie_Burger (mail):
Isn't it high time we get those farmers who are growing all that corn that is being distilled into whiskey and those vinyards in Napa Valley that are stomping on grapes that are being fermented into wine and being sold to retailers and saloon keepers who are selling it people who drink the stuff and then go out on the highways and KILL us? - Ken Willis

Have you ever read U.S. history, Ken? There was an amendment to the U.S. Constitution to accomplish just that. It was called PROHIBITION. Now you can go back to your TV football game; your beer &pretzels.
10.30.2005 1:20pm
Beerslurpy (mail) (www):
The NRA's lobbying power comes from being able to deliver election results. This is possible because a lot voters support gun ownership and are willing to make it a single issue vote. There are a ton of people who are mildly anti-gun but dont really care enough to do more than answer telephone poll questions.

Brett, I'm an engineer too and I think you are misinformed on the ford gas tank case. The gas tank case involved Ford knowing the exact serious harm that would be produced from the gas tank failures and deciding that the amount of damages that the injuried parties would win in lawsuits didnt offset the amount of money saved by making the car safe. They then failed to inform the consumer, even in small print, that "being hit from behind at moderate speed will cause you to be engulfed in flames," something a reasonable person might not otherwise expect. At a small expense, they could have eliminated the potential harm (putting the gas tank under the car isntead of in the back), yet they chose not to.

A firearm manufacturer that made a gun that exploded like a grenade when dropped with a full magazine would be rightfully exposed to similar liability issues. We've known for a long time how to make great cars and guns that didnt behave in shockingly harmful ways, so any product that does behave like that had better have some very compelling reason for doing so, or at least educate the consumer that their product behaves unlike every other one of its kind. I think if the Ford engineers had actually been ignorant of the gas tank issue they would have had a much stronger case, but they knew about the issue and exactly what the outcomes would be.


People keep refering to these as frivolous lawsuits. They may have been unjustified lawsuits, but they were not frivolous.


I agree, but frivilous is a word now in common parlance amongst non-lawyers. Most people are not equipped to distinguish true frivolity from what a layman might call "obviously a pile of BS."
10.30.2005 1:52pm
juris imprudent (mail):
Frank: "For example, the allegations are that manufacturers tacitly (maybe openly) encouraged gun retailers to sell to criminals in order to promote sales of their guns."

And you challenge my "given"? Are you familiar with the NAACP suit? Any of the municipal ones? Can we please attempt some serious discussion here? There has never been an iota of evidence in support of your above claim. You are asserting that manufacturers induced retailers to violate federal and state law. That is a criminal consipiracy, not a tort - but funny, I don't notice any AGs signing on for that, do you? Otherwise this is just Goldilocks gun control - A sold too many, B sold too few, etc.; of course there never really seems to be a "just right" answer in this scheme.

Hank: "Doing the NRA's bidding may translate into votes for another reason too, which is that the NRA's campaign contributions pay for campaign advertising."

Goldilocks political advertising eh? Don't you realize the foundation of the argument against campaign advertising - that the voters are so easily influenced that we must control the influences? If this is really the case, then we should abolish elections because the people are too stupid to legitimately choose their government. If you are in CA, you should be supporting Prop 75.

Veggie: "There was an amendment to the U.S. Constitution to accomplish just that. It was called PROHIBITION."

And there was another one that repealed PROHIBITION because it was such a dismal failure. Which proves two things liberals usually fail to understand - first, the govt did NOT have the power to do this in the first place, and second, when it did not work it was discarded. (Although one could argue that it was merely transferred to 'drugs' in place of alcohol).
10.30.2005 2:00pm
Houston Lawyer:
What is this discussion of trusting juries to set public policy. That is a load. Juries are finders of fact. They are told the law by the court prior to their deliberations. I can't think of a worse group to determine public policy than a jury. Juries typically consist of the least informed and educated groups in our society.

It's generally a good thing when the legislature determines the law rather than the courts.
10.30.2005 2:00pm
frankcross (mail):
juris, the difference was that yours was a statement of fact, mine was a statement of possibility. And you continue to make confident statements of fact such as "not an iota of evidence" without citing any source or authority. Indeed, a quick search of westlaw enabled me to find an iota of evidence in support of the claims, though perhaps not enough. Some limited evidence was presented in the link that David gave. The virtue of the common law is that you cannot foresee all possibilities in legislation. And of course you have to consider the economic theory that the reason gun manufacturers have not acted improperly, if they haven't, is the threat of legislation.

Houston, nobody's saying that juries should "make law," except insofar as applying traditional principles of negligence to facts is making law, which is the traditional responsibility of juries.
10.30.2005 2:32pm
Hank:
juris imprudent said: "Don't you realize the foundation of the argument against campaign advertising - that the voters are so easily influenced that we must control the influences? If this is really the case, then we should abolish elections because the people are too stupid to legitimately choose their government."

The argument is not against campaign advertising. The argument is against allowing interest groups to buy legislators' votes by contributing large amount to pay for campaign advertising. The line between large campaign contributions and bribery is difficult to discern.
10.30.2005 2:36pm
countertop (mail):
This is in response to Hank's first, misinformed, post. Don't know if it was addressed subsequently, since I have only quickly skimmed the other comments.

One was the manufacturer, in the state of Washington, of the rifle that the D.C. sniper used a couple of years ago. The rifle had been stolen from a seller whom the manufacturer allegedly knew kept such poor inventory that it didn't know that the rifle was stolen. The manufacturer settled the suit.
.


First, Bushmast Firearms is not a Washington manufacturer. They are located in Maine and do all (or nearly all) their manufacturing in Maine.

As far as I know, they do no manufacturing in Washington.

As a manufacturer, they did not sell directly to the seller - nor would they have any way to know how well the seller kept their books. nstead, they sold to a middle man - a regional distributor - who then resold the gun to the final dealer. As the manufacturer - or even the distributor - they would have no way to know what shape Bulls Eye's books were in - or if they had a theft problem. The ATF might have known - and if it did, should have yanked Bulls Eye's license. But Bushmaster couldn't have known. All they knew was that Bulls Eye was a FFL holder and therefore eligible to purchase and sell guns.

Heck, if they failed to sell the guns to them - and claimed Bulls Eye's recording keep was suspect, then Bushmaster would be - rightly in my eyes - subjected to a claim for defamation and tortious interference with the right to contract.

Also, Hank, Bushmaster didn't settle the suit because they were in the wrong. They settled the suit for the reason most people settle it, because the insurance companies actuaries find the point were the feel its cheaper to settle than to continue litigating. Check out the court order one day, you'll actually see how wrong your impression is.

Another was a manufacturer in Massachusetts who allegedly hired an employee without checking his background and learning that he was a crack addict with a theft record. The manufacturer also failed to use metal detectors to prevent its employees from walking out with gun parts. This suit is pending and so will presumably be dismissed as a result of the new law.


Don't know about the employee being a crack addict and having a theft record. That may very well rise to negligent behavior, and if it does, a suit COULD still go forward under the existing law. However, I don't get the plastic gun illusion. Outside of Hollywood and Chappaquidick Ted's irrational rants (and know Hank's), the fact exists that you simply can't make a plastic gun. The pressures that exist are so great that the action of the weapon - at least - need to be manufactured from steel in order to function. Don't get what you saying there - but I would suggest even mentioning it throws your credibility on that point right out the window.

Anyway, Hank, anyone with a legitimate case can still proceed under the bill if the manufacturer was indeed negligent in the selling a defective product.
10.30.2005 2:42pm
Hank:
countertop: the lawsuit against the manufacturer of the D.C. sniper's rifle was filed in the state of Washington, and the court wrote an opinion prior to the settlement; I don't have the citation handy. I have no knowledge of the defendant's motivation in settling, and, unless you work for them or know someone who does, I doubt that you have any either.

And you're confused about the new statute. It bars negligence suits with five exceptions, and none of the exceptions will let the suit against the Massachusetts employer proceed. The new statute does not bar defective products suits, but that's not what at issue here. Finally, a plaintiff need not prove that a manufacturer was negligent in selling a defective product. He need prove merely that the product was defective and that the defect caused his injury.
10.30.2005 3:09pm
alexandra (mail):
I would say Professor Volokh (is that your name?) shined!!
I also loved your assertiveness ........
10.30.2005 3:47pm
A Guest Who Enjoys This Site:
Hank asks -


Can anyone cite any legitimate poll results? I thought it was a commonplace that the large majority of Americans support stronger gun control, and that legislators don't take their wishes into account because of the NRA's lobbying strength. Is that true or not?


The problem with polls is that they can be, and usually are, skewed depending on the outcome you desire. The skewing doesn't have to be an obvious error of methodology or an 'in your face' question such as those 'survey' questions often seen on ACLU or Democratic Party or NRA questionnaires.

Take for example the 1993 National Crime Victimization Survey (NCVS) which proffered data to "imply that each year there are only about 68,000 defensive uses of guns in connection with assaults and robberies, or about 80,000 to 82,000 if one adds in uses linked with household burglaries." (Kleck and Gertz 1995) This was an incredibly low figure given that: "These figures are less than one ninth of the estimates implied by the results of at least thirteen other surveys..." (Kleck and Gertz 1995) Some estimates from outside the Kleck and Gertz article ran as high as 2.5 million uses and even the DOJ, in 1994, came up with an estimate of 1.5 million DGU. But, the NCVS figures were bandied about as 'evidence' that the need for individuals to own firearms for self-defense was largely an urban myth, fed by movies and television while being touted by special interests such as the NRA (which, by the way, has, in BOTH of their monthly magazines, a full page dedicated to news clippings of actual reports of individuals involved in DGU's).

However, one study (Kleck, Gary and Marc Gertz, "Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun," Journal of Criminal Law and Criminology (Northwestern), 1995, Vol. 86 No. 1.) pointed to a serious flaw in the methodology of data collection. Here are a few of the comments:


Equally important, those who take the NCVS-based estimates seriously have consistently ignored the most pronounced limitations of the NCVS for estimating DGU frequency. The NCVS is a nonanonymous national survey conducted by a branch of the federal government, the U.S. Bureau of the Census. Interviewers identify themselves to Rs as federal government employees, even displaying, in face-to-face contacts, an identification card with a badge. Rs are told that the interviews are being conducted on behalf of the U.S. Department of Justice, the law enforcement branch of the federal government. As a preliminary to asking questions about crime victimization experiences, interviewers establish the address, telephone number, and full names of all occupants, age twelve and over, in each household [Page 155] they contact. [25] In short, it is made very clear to Rs that they are, in effect, speaking to a law enforcement arm of the federal government, whose employees know exactly who the Rs and their family members are, where they live, and how they can be recontacted.

Even under the best of circumstances, reporting the use of a gun for self- protection would be an extremely sensitive and legally controversial matter for either of two reasons. As with other forms of forceful resistance, the defensive act itself, regardless of the characteristics of any weapon used, might constitute an unlawful assault or at least the R might believe that others, including either legal authorities or the researchers, could regard it that way. Resistance with a gun also involves additional elements of sensitivity. Because guns are legally regulated, a victim's possession of the weapon, either in general or at the time of the DGU, might itself be unlawful, either in fact or in the mind of a crime victim who used one. More likely, lay persons with a limited knowledge of the extremely complicated law of either self-defense or firearms regulation are unlikely to know for sure whether their defensive actions or their gun possession was lawful.

It is not hard for gun-using victims interviewed in the NCVS to withhold information about their use of a gun, especially since they are never directly asked whether they used a gun for self-protection. They are asked only general questions about whether they did anything to protect themselves. [26] In short, Rs are merely given the opportunity to volunteer the information that they have used a gun defensively. All it takes for an R to conceal a DGU is to simply refrain from mentioning it, i.e., to leave it out of what may be an otherwise accurate and complete account of the crime incident.

Further, Rs in the NCVS are not even asked the general self-protection question unless they already independently indicated that they had been a victim of a crime. This means that any DGUs associated with crimes the RS did not want to talk about would remain hidden. It has been estimated that the NCVS may catch less than one-twelfth of spousal assaults and one-thirty-third of rapes, [27] thereby missing nearly all DGUs associated with such crimes.

In the context of a nonanonymous survey conducted by the federal [Page 156] government, an R who reports a DGU may believe that he is placing himself in serious legal jeopardy. For example, consider the issue of the location of crimes. For all but a handful of gun owners with a permit to carry a weapon in public places (under 4% of the adult population even in states like Florida, where carry permits are relatively easy to get) [28], the mere possession of a gun in a place other than their home, place of business, or in some states, their vehicle, is a crime, often a felony. In at least ten states, it is punishable by a punitively mandatory minimum prison sentence. [29] Yet, 88% of the violent crimes which Rs reported to NCVS interviewers in 1992 were committed away from the victim's home, [30] i.e., in a location where it would ordinarily be a crime for the victim to even possess a gun, never mind use it defensively. Because the question about location is asked before the self-protection questions, [31] the typical violent crime victim R has already committed himself to having been victimized in a public place before being asked what he or she did for self-protection. In short, Rs usually could not mention their defensive use of a gun without, in effect, confessing to a crime to a federal government employee.

Even for crimes that occurred in the victim's home, such as a burglary, possession of a gun would still often be unlawful or of unknown legal status; because the R had not complied with or could not be sure he had complied with all legal requirements concerning registration of the gun's acquisition or possession, permits for purchase, licensing of home possession, storage requirements, and so on. In light of all these considerations, it may be unrealistic to assume that more than a fraction of Rs who have used a gun defensively would be willing to report it to NCVS interviewers.

The NCVS was not designed to estimate how often people resist crime using a gun. It was designed primarily to estimate national victimization levels; it incidentally happens to include a few self-protection questions which include response categories covering resistance with a gun. Its survey instrument has been carefully refined and evaluated over the years to do as good a job as possible in getting people to report illegal things which other people have done to them. This is the exact opposite of the task which faces anyone trying to get good DGU estimates--to get people to admit controversial and possibly illegal [Page 157] things which the Rs themselves have done. Therefore, it is neither surprising, nor a reflection on the survey's designers, to note that the NCVS is singularly ill-suited for estimating the prevalence or incidence of DGU. It is not credible to regard this survey as an acceptable basis for establishing, in even the roughest way, how often Americans use guns for self- protection.



That's just ONE of the surveys which gun-control advocates have cited. And, of course, there are critics of the methods used by Kleck and Gertz in THEIR estimates.

Here's a portion of 'Basic Guidelines for the Development of Survey Items' from Office of Juvenile Justice and Delinquency Prevention. Evaluating Juvenile Justice Programs: A Design Monograph for State Planners. Washington, DC: Prepared for the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention by Community Research Associates, Inc.; 1989. pp. 41-43.


Avoid stating questions as double negatives and the use of confusing phrases and implicit negative words which require positive responses for a negative opinion. Instead of asking "Do you oppose gun control?, the more direct and positive question "Do you favor gun control?", is less confusing and thus preferable.


I don't think I have to go through the 'science/art' issues of developing survey instruments to point out one of the first questions that comes to mind (e.g. "What do they mean by 'gun control?'"). A simplistic answer of "Yes" could be predicated on the reasonable assumption that 'gun control' means keeping them out of the hands of criminals, those adjudicated to be mentally incompetent, et al. If the survey is being taken in a group, there can be perceived social pressure to answer such a 'loaded' (no pun intended) question in a 'correct' way. Who is asking the question; a gun-control activist who has just harangued you for five minutes on the evils of gun ownership or an NRA rep at the local gun show? Ad infinitum.

Part of the problem is that even police officers don't know how to, or simply don't, respond correctly to 'basic knowledge' questions related to firearms ownership. According to a Survey of Police Officers in Lehigh
and Northampton Counties Pennsylvania
in
October 1997:

55.6% of responding police officers claimed that the following statement was FALSE...

"Under current law... (b.) every prospective firearm owner has to prove he or she is law abiding"

Although the author of this study claims that Federal Form 4473 must be taken as "proof," this does not necessarily address the 'mindset' of the responding police officer insofar as what they perceived the context of prospective firearms ownership and what constituted 'proof' and what was meant by 'law abiding.'

Another subsection of this same question had 67.3% of police respondents answering that the following question was FALSE.

"Under Current Law... (d.) unelected civil servants have the power to decide what kinds of firearms may be lawfully owned."

As the survey author points out: "The director of the BATF recommends to the Secretary of the Treasury those types of firearms that should or should not be legally sold or owned. GCA 68 §925(d)(3);(e)(2)"

Problem: Does this indicate that the director of the BATF 'decides' or does it mean that he 'recommends' which ones should be 'lawfully owned?' How do you structure the survey to account for a difference in definitional perception as to "factual knowledge" between the respondent and the survey author when the question is this technically vague?

But, there are a couple of disturbing responses by the police officers; responses which would be consistent with the publicity or 'spin' of many in the media and the gun-control pundits rather than a recognition of the actual law.

According to 68.6% of respondents, the following statement was TRUE.

The rifles commonly referred to as assault weapons and which were banned as part of the 1994 Crime Bill...
a. are fully automatic machine guns


Problem: SEC. 110102. RESTRICTION ON MANUFACTURE, TRANSFER, AND POSSESSION OF CERTAIN SEMIAUTOMATIC ASSAULT WEAPONS.

In the context of this "Crime Bill," all of the assault weapons, as defined and listed, were semiautuomatic. Now, while one might not expect that every layperson could give a response that recognized the technical difference, I would certainly expect that over two-thirds of law enforcement officers tasked with enforcing the laws would be able to distinguish between automatic and semiautomatic weapons; especially when the next part of the question asks...

The rifles commonly referred to as assault weapons and which were banned as part of the 1994 Crime Bill...b. are single shot, self loading firearms

For those who don't know, THAT is the substantive definition of a semiautomatic weapon!!! What did police officer respondents reply? 75.8% of respondents said that it was FALSE that the bill which banned specific, semiautomatic 'assault weapons' banned assault weapons which were semiautomatic!!!

Even more disturbing is the potentialities involved in the following question from the survey...

34. The United States Bill of Rights...a. contains a list of privileges granted by the government to the people

Remember, these are POLICE OFFICERS providing the responses. 71.2% of the respondents said this statement was - TRUE !!! I guess they must have missed that nasty little paragraph, known as the 'Preamble,' which reads...


We, the People of the United States...do ordain and establish this Constitution of the United States.


I guess we could ask whether the officers felt that the question implied that the Bill of Rights required a governmental process to be accepted and included as part of the Constitution. But, given that these same respondents couldn't distinguish between an automatic and a semiautomatic firearm, I have serious doubts whether they could offer a discourse on the legal technicalities surrounding a 'right' and a 'privlege' which is not granted by the government, but secured by the people themselves.

So, Hank, what was that about...


I thought it was a commonplace that the large majority of Americans support stronger gun control...


Is it 'commonplace' or are you relying on statistics generated by questionable polls/results such as just the two I mention above?
10.30.2005 6:15pm
Guest2 (mail):
It's great to see that some people responded to my comments posted at 5:54 this morning. Unfortunately, I was unable to check back and respond until now.

My point at 5:54 was that (it seems to me) not enough people are addressing the cost we may be paying in getting this law (which in a vacuum I agree would probably be a good law). This law is in many ways similar to price supports for farmers and import restrictions that protect sugar producers. Price supports & import restrictions keep folks in business who should be permitted to go out of business. They say to Uncle Sam, "Help me! I can't compete in an open market. The country needs people like me." And Uncle Sam says, "OK, even though you're not competitive, I'll use tax revenues to prop up your inefficient business."

Gun manufacturers appear to have done something similar (though clearly not exactly similar, as I'll address in a minute). Their expenses have risen dramatically in the past few years. So they've run to Uncle Sam, crying that they're being put out of business and need his protection.

Now, I realize that one key difference between gun manufacturers and the farmer/sugar producer scenario is that gun manufacturers are being hammered by a government institution (the legal system), not by competitors in the open market. The relevant similarity for present purposes, however, is that both scenarios are major federal interferences in the economy.

So my question is this, Is the situation with gun manufacturers really SO BAD that we need to give the federal government even more power in manipulating our economy?

It was respecting this question that I provided information on bankruptcy etc. We're not (at least not yet) faced with a stark choice of still more federal control vs. no guns at all, though some in the debate seem to be depicting the situation in this extreme way. I think we should've let the market and common-law system continue to do their work and see how it shakes out. (Yes, the common-law system has problems, but most of the time it gets things right, just as most cops don't use brutality and most businessmen aren't fraudsters.) To me, the new law is a nuclear option that is not yet necessary.

As with anything, the toughest question is, AT WHAT COST?
10.30.2005 7:22pm
juris imprudent (mail):
Frank-

"And you continue to make confident statements of fact such as "not an iota of evidence" without citing any source or authority."

Hmm, to what authority should I make reference for an absence of evidence? You take note of the existance of an iota (also without reference) and dare I anticipate it is sourced from the NAACP suit and/or the VPC, i.e. not evidence at all, but the assertion of a patently false claim.

"And of course you have to consider the economic theory that the reason gun manufacturers have not acted improperly, if they haven't, is the threat of legislation."

Gun manufacturers already operate under one of the strictest regulatory regimes. What other business is ONLY allowed to sell to federally licensed businesses? Therein is the lie that gun manufacturers are some kind of rogue enterprise.
10.30.2005 7:54pm
juris imprudent (mail):
Hank-

"The argument is not against campaign advertising."

You aren't familiar with McCain-Feingold, are you? Or the hullabalou about the 527s in the last election?

"The line between large campaign contributions and bribery is difficult to discern."

So, AARP, NOW, unions, the NRA are all out to bribe legislators? That's even a bit too cynical for me.
10.30.2005 7:58pm
juris imprudent (mail):
Guest2: "To me, the new law is a nuclear option that is not yet necessary."

At what point would you have accepted it's necessity? When there were less than 10 viable gun manufacturers? Less than 5? Or when gun prices rose 50% across the board? 100%? Might that not fall under the heading of closing the barn door a little late?

It makes a world of difference for an industry to seek respite from competitors through govt intervention versus an industry seeking relief from judicial harrasment BY govt (which was the source of the majority of the recent suits).
10.30.2005 8:08pm
Guest2 (mail):
Juris, neither of the scenarios you pose (fewer than 5 manufacturers / 100% price increase) would trouble me. But even so, this is a not a situation like losing one's virginity. If it ultimately turns out that the heavy hand of the feds is needed, the nuclear option can be taken at that point, and the gun industry would then grow back.
10.30.2005 8:16pm
Ken Willis (mail):
Veggie_burger, my post was meant as a parody/satire of people who think like you....sorry you didn't get it. Guess you didn't think it was funny, either. Sorry again.
10.30.2005 8:18pm
juris imprudent (mail):
Guest2,

First, I fail to see why I and other gun owners should be forced to pay higher prices (and/or have fewer choices) due to the costs incurred in defending against these improper suits. Talk about an economic externality! Second, to the extent that the goal is political/regulatory and not just monetary recovery for injury (i.e. a real tort), I abhor the use of the judiciary to accomplish what cannot be done in the legislature. Abuse the judiciary and lose access to it. That really doesn't seem all that outrageous to me.
10.30.2005 8:24pm
Andy Freeman (mail):
> There are other ways to deter frivolous suits, such as loser pays.

Feel free to enact these other ways. After you do, we can revisit this case.

I note that Hank has yet to address the fact that gun manufacturers are among the most heavily regulated and can still be sued if they break the law.

At some point, regulatory compliance should count for something. If you still want liability, perhaps the general public should pay, as they control the regulations.
10.30.2005 8:26pm
countertop (mail):
the lawsuit against the manufacturer of the D.C. sniper's rifle was filed in the state of Washington, and the court wrote an opinion prior to the settlement; I don't have the citation handy. I have no knowledge of the defendant's motivation in settling, and, unless you work for them or know someone who does, I doubt that you have any either.


Actually Hank, I can just cite you to the statement that Bushmaster had posted on their web page for a few months after they settled the case (though it is no longer up - that's ok, cause Jeff Soyer was smart enough to post the whole thing at the time).

The Washington DC Brady Group would have you believe they won some kind of victory! The Brady Group brought this lawsuit not for the victims, but for their anti-gun agenda. The Brady Group asked for the settlement conference after reviewing all the evidence they knew they could not be successful in court and they wanted to stop paying lawyer fees.

The Brady Group sent a second tier lawyer to the settlement conference with nine demands on Bushmaster regarding business practices and Bushmaster denied them all. We then gave the Brady Group our statement that we support the BATF licensing requirements to be a Federal Firearms Licensed (FFL) holder and our support for the National Shooting Sports Foundation (NSSF) safety programs, and they accepted our statement. We did not agree and would not agree to change the way we do business or make any additional demands of our customers. We were emphatic that Bushmaster did not commit any wrong doings.

The attorney for our insurance company was at the settlement conference and informed us that about half of our policy limits had been spent on trial lawyers. It was the insurance company’s position that all of the limit would be spent on this case, and therefore turned the funds over to Bushmaster to use as we saw fit removing the insurance company from the case. Our choice was to continue spending it on trial lawyers or turn it over directly to the victims’ families with no funds going to the Brady Group for their legal fees.

We felt the compassionate thing to do was give it to the victims’ families, not because we had to but because we wanted to. The Washington DC Brady Group should learn what compassion is really all about!

Bushmaster strongly believes and vigorously supports the rights of citizens to own and use firearms, and the settlement of this case in no way compromises that stand. The Brady Group’s attempt at claiming a victory over firearms manufacturers is a hollow one with no substance. Their attempt to eliminate gun rights of citizens has failed legislatively and will continue to fail with these frivolous lawsuits against gun manufacturers.
10.30.2005 11:00pm
Bruce Hayden (mail) (www):
One problem with not having a loser pays system is that in many cases such as these, the legal fees for defending the case are far, far, higher than those of the plaintiffs. This is even worse, of course, when the plaintif is a state or municipality, where the taxpayers are paying for the suit.

One big reason that defense costs are typically higher than plaintiffs' costs in many of these cases is that the cost of losing is so high. So, the defendants often end up paying for top tier firms who check and double check everything. This is what is called "bet the company" litigation, and smart companies don't skimp when facing it.
10.30.2005 11:46pm
David M. Nieporent (www):
Hank, regarding your question here, I think you're right. The negligent entrustment exception applies only to sellers, not to manufacturers, so the Massachusetts suit would likely be barred. The law didn't quite contemplate that exception -- when a manufacturer was acting more like a seller than like a manufacturer.

Nonetheless, it seems perfectly reasonable to preempt that, also. Again, since when do employers have a duty to conduct background checks on all employees? Since when do employers have a duty to search all employees?

----

JosephSlater, the world trade center suit referred to was not 9/11, but rather was the 1993 world trade center bombing, where a jury recently decided that the port authority was twice as responsible for the injuries suffered as the terrorists were.

And as for "foreseeable," that's not the same as proximate cause. Any harm is foreseeable.
10.31.2005 12:23am
countertop (mail):
Having lived and worked in England, I am generally against the loser pays system. I think it shifts the balance far too much in favor of well funded parties and not only makes it difficult for an individual person to obtain relief from a larger corporation, but also acts as substantial leverage enabling a large entity to extort more favorable terms from an individual in settlement of any matter (whether the individual filed it or not).

however, perhaps there is a compromise solution here in the states - that would be that anytime either 1) a city, state, or other government, 2) filed a claim seeking damages in tort, 3) for an activity that was not the immediate cause of harm, then 4) if the city state or other government suit was dismissed or they otherwise lost 5) they would be responsible for all costs including attorney fees and expenses incurred by the defendant corporation.

A similar model could probably be devised for individual attorney's and/or law firms assuming liability for filing class action law suits - though I would want to alter it somewhat in that situation (not quite sure how, it just doesn't sit fully well with me for the class action model).
10.31.2005 2:04am