The Washington Post reports that the long-anticipated lawsuit against soft drink manufacturers for contributing to children's obesity is expected to be filed in the near future.
Accroding to the article, the target is vending machines in schools and the legal theory is one of an "attractive nuisance." The suit is expected to be filed in Massachusetts as an "unfair practice" under that state's unusually liberal consumer protection law. According to Victor Schwartz, "Massachusetts is one of the few states in the country where plaintiffs do not have to demonstrate actual damage in a consumer-protection case -- just that a violation occurred."
The lawyers behind the suit are the ones who fashioned the successful tobacco litigation. Although the the defendants and the legal theory have been identified, the article suggests that the lawyers don't have a plaintiff yet:
Daynard said that while the legal theory is ready, the challenge is finding the right set of parents to sign on as plaintiffs for the class-action case. "It's taking us longer than we expected," he said.
It reminds me of the (in)famous Bill Lerach's quotation about his securities class action practice: "I have the greatest practice of law in the world- I have no clients!"
Back in my class-action days, someone tried to pitch a lawsuit to us suggesting that the soda companies only put caffeine in their drinks for its addictive qualities, and that this harms kids, etc. We basically decided that the world wasn't ready for that case yet.
No problem, take your time. There's no expiration date on the state rule 11 motion that's already drafted up.
That would be the obvious solution. You'd think the pop companies would want to do that to avoid the perception of loading the kids with empty calories.
Perhaps they think their sales would plummet.
is contributory negligence an issue here? is massachusetts a contrib or comparative state? who had the last clear chance to avoid the soda machine?
Under the attractive nuisance doctrine, it's the person who's in possession of the land that's responsible.
Suing a soft drink manufacturer for a "dangerious" vending machine is akin to trying to sue a swimming pool manufacturer because some kid got injured in an unfenced swimming pool.
Note that in such cases, damages are set at $25 -- or $75 if the violation is found to be particularly egregious. See M.G.L. c. 93A, sec. 9(3). Query if that would be per person in a class action, however.
is contributory negligence an issue here? is massachusetts a contrib or comparative state? who had the last clear chance to avoid the soda machine?
Mass. is a modified comparative negligence state: if the plaintiff is more than 50% negligent, he/she recovers nothing; if he/she is less than 50% negligent, he recovers proportionate to fault. M.G.L. c. 231, sec. 85. However, a violation of 93A is generally an intentional act, I think, so that rule wouldn't apply.
It used to be, before the Supreme Court held that commercial speech protections apply to the legal profession.
Now the local newspapers are virtually kept in the black by running mass-tort ads.
Lest you think this total malarky, I am in the population that is sensitive to that sweetener. It works on me like caffeine, only much more so. I get a "rush", followed by a speed high, followed by a crash. Then, 12 hours later, I have problems falling asleep at night. For those of us sensitive to it, it is nasty stuff.
Where the case has merit, there's nothing wrong with the attorney being the one to do the investigation and then to find a plaintiff and let him know how he's been ripped off. The whole premise of, say, a consumer rip-off is that the consumers may not realize they've been ripped off. Or in the context of a securities fraud case, it's the attorneys who are the experts and have the ability to investigate a company and find out if the stock price dropped because of fraud, or for an innocuous reason.
Of course, frivolous consumer and securities cases get brought, and that's the fault of the lawyers who bring them. But that doesn't mean we should criticize the lawyers in a meritorious case just because they found the plaintiffs, rather than vice versa. The important thing is that a wrong is being righted.
It's actually worse than that. Taking off on the rumors that NutraSweet causes brain tumors, the idea is to get all the schools to switch to Diet Coke to avoid the obesity suits, THEN nail them for giving the kids brain cancer. Sweet! Actually, NutraSweet!
Le Messurier
Parents who aren't themselves 300 lbs. each would be important from a proximate-cause perspective, I suppose.
(Why do I love this thread so?)
how much of a crime was committed in the manufacture and use of asbestos in the last 60 years.
We will never know. But we now know that there are thousands upon thousands fewer "victims" and a much lesser crime (if one really existed) than before Judge Jack started the ball rolling to uncover the horrendous crime by the tort lawyers in these asbestos suits.
Oh, you mean lawsuits. Never mind.
Oh, and Le Mess, we DO know a great deal about the crimes of the asbestos industry, thanks to the wonderful world of pretrial discovery. It really is atrocious.
A better system would have imprisoned numerous executives for life, rather than creating a tort casino with a few big winners and plenty of un(der)compensated victims.
I'm not sure that his life was substantially impaired by the exposure--almost certainly not as much as his smoking did. I object to a system where lawyers end up getting exorbitant amounts of money out of a settlement.
Some years ago, some lawyers filed a class action suit against Remington claiming that they had used substandard steel in their shotgun barrels. To my knowledge, there were no injuries to any users. At the end of this, my recollection was that the "victims" ended up with far less than the lawyers.
There's a sign on a business marquee here in Boise that overstates the number of ambulance chasers, but does capture how a lot of Americans feel: "99% of lawyers give the rest a bad reputation."
They should also, of course, know about the callousness of corporate officials at companies like Johns Manville and their lawyers as well. They'd also be well served to be aware that the culpability of many, if not most, of the defendants now currently being sued (many of whom are facing bankruptcy) does not stem from the kind of intentional disregard of risk that characterized the actions of the Roosevelt administration and asbestos manufacturers. And, as noted above, there is the further issue of whether many of the current plaintiffs are in fact injured at all.
(Note: to be fair, the Roosevelt administration's decision to sacrifice the lives and health of shipyard workers for the war effort must be understood in the context of the times. Clearly the government had made a decision to sacrifice the lives and health of thousands of American GIs to stop Hitler. It would have been difficult to justify threatening our battlefield success because of a concern that shipyard workers might die of mesotheiloma in 25 years when we were sending hordes of young Americans away to battle knowing many would perish within weeks or months. I don't have any expertise on whether reasonable precautions against asbestos-related illness would have significantly hampered war efforts.)
Clayton alludes to one of the largest classes of asbestos victims, the folks who won us the war on the home front. In many cases, most notably at the Brooklyn Navy Yard, the government knew full well that asbestos was toxic but covered up that information because, after all, there was a war that needed winning. This is hardly the worst atrocity committed upon innocent workers in the name of the war effort; in some places, for example, workers were paid to roll uranium into nuclear bombs, never being told that they were working with radioactive, toxic materials.
Another great asbestos story involves a major fiberglass producer who, back in the 1930s, developed an advertising campaign to tell the public that asbestos was dangerous and that they should stick with safe fiberglass instead. Only, while these ads were in development, the company happened to merge with an asbestos manufacturer. Now that they were in the business of selling asbestos, the ad campaign, naturally, went in a drawer. Yet many people believe to this day that the harms from asbestos were completely unforeseeable and that no one knew it was dangerous until much later.
There are plenty of frivolous lawsuits but there are also a great many injustices that would never be remedied if not for enterprising lawyers. Today, it's hard to see how a lawyer deserves a massive contingency fee from an asbestos client for what often amounts to little more than filling out a form. But the lawyers who pioneered the asbestos litigation, who poured millions of dollars into investigation and pretrial discovery in order to prove that the manufacturers knew better, who had to defeat motion after motion in order to establish that their claims had merit, they certainly earned their fee. You never hear about the frivolous defense lawyers and how they don't deserve to make anything.
Soft drinks? Attractive nuisance? Nothing more than a (cash) remedy, looking for a (represented) victim , missing a (good faith) cause of action.
This represents the worst of our profession.
The people constanstantly kvetching about the evils of tort lawyers fall into two classes. 1) economic illiterates and 2) defendants.
The tort system fulfills a basic economic function -- it minimizes externalization and helps properly price goods and services in the market. Proper pricing is not only a good thing in a free market, it's an essential thing. Heck, it's what the free market is all about.
Let's take, for a moment, the infamous McDonald's coffee case, one of the favorite bete noires of the anti-tort-lawyer crowd. A jury did hit McDonald's with a multi-million dollar verdict for having its coffee too hot but there are a couple of salient facts that the nattering nabobs of tort reform never mention. First, McDonalds had had about 700 complaints of serious injury from their coffee. Second. McDonald's brewed their coffee at least 20 degrees hotter than other restaurants because it allowed them to brew slightly more coffee per pound of coffee beans. In other words, hotter coffee slightly increased McDonald's profits.
Absent the tort system, it's no skin off of McDonald's nose how many people are injured by McDonald's actions so long as those actions increase its profits. Let's say, hypothetically, that McDonald's hotter coffee increases its profits by 1 million dollars/year but causes injuries needing 2 million/year in medical care. Since McDonald's doesn't have to pay for this medical care, they'll keep making hotter coffee but that will cause a net loss of 1 million. If, however, McDonald's does have to pay for these extra medical costs, they won't make their coffee so hot.
Pretty much every time you hear some outrageous story about an outrageous tort verdict, you can pretty much bet that there's a story behind it like this one. Remember, a jury of your peers heard all the evidence on both sides before it came to its verdict. Chances are, if you'd heard all the evidence yourself, you'd have come to the same verdict.
There are certainly arguments to make in favor of a more efficient tort system. But in that case, there's plenty of blame to go around. For some reason, you never hear tort reformers complaining about scorched-earth defense attorneys, only rapacious plaintiff's lawyers.
(using low, easy, numbers)
If cell phone company X rips off 500,000 customers $0.50, it is then up $250,000 on all other cell phone companies. These other cell phone companies have an incentive to make up this $250,000 with a like ripoff. Indeed, in a perfectly competitive market, they must do so. Because no individual plaintiff has incentive to press their rights, this ripoff is governed only by whatever governmental regulations might be haphazardly imposed and enforced.
So, even if the plaintiff's attorney makes $125,000 off this litigation, and each class member only goes home with a quarter, consumers as a whole are still benefited: without class action tort, the entire competitive market would have had incentive to break their deals with individual consumers. The freedom and security of contract which underpins market transactions would be imperilled. People would start imposing risk premiums for ripoffs, and information and transaction costs would ensure that this would be relatively inefficient relative to secured expectations.
Class action litigation isn't simply a bonanza for plaintiff's lawyers (and defense lawyers, to a lesser extent), but a defense of the prerequisites for an efficient, competitive marketplace.
One serious problem is that frequently the plaintiff class members do not get cold hard cash, but some sort of coupon or discount that is worth considerably less than its face value. Most coupons go unredeemed, and even those that are redeemed are generally for that which the defendant sells or even a high-margin upgrade on that which the defendant sells, so even those coupons that get redeemed cost the company considerably less than their face value. Still, the attorneys get fees based on the total face values of all the coupons.
In cases such as this the plaintiff lawyers and the defendants share an interest in making the coupons worth as little as possible while having as high a face value as possible. This gave us, for example, the recent Netflix settlement, where the company has budgeted $3 million for the settlement -- $2.5 million for the attorneys, $2000 for the lead plaintiff, and an expected cost of $ 1/2 million to actually fulfill the upgrades that get requested. Note that Netflix may actually profit from this settlement, which gives a free one-month upgrade to each class member, and lets Netflix start charging the class member at the upgraded rate at the end of the month if they don't explicitly cancel.
Something is out of control here.
-dk
When we send children to school, teachers and administrators are entrusted with the responsibility to provide a healthy learning environment both in and out of the classroom--especially when dealing with young school age children. Granted, the argument that personal responsibility--both that of parents and children--increasingly comes into play as children age. But it is absurd to say that schools have no responsibility for the environment they create.
Finally, I think there is one area of parental responsibility that isn't mentioned. Why do school districts need to resort to these contracts in the first place? We all want better schools and better programs...so long as we don't have to pay for it. If we as a society value the health and education of our children, we need to pony up and start paying for it. Otherwise, schools will continue to "prostitute" our children's help...in the name of our children.
helphealthHow about, o you dedicated libertarians, (i) removing all restrictins on the unauthorized practice of law and (ii) enforcing contractual provisions on mandatory arbitration, jury trial waivers etc. (including the kind of provision that says that if there is a waiver printed on the Coke can or the cigarette pack, then you are bound by it)? When you've done that, you can come back and defend plaintiffs' lawyers. Until then, your hypocrisy is rather blatant.
Second, the idea that lawyers are some kind of cabal with monopoly power is just absurd. In case you haven't noticed, there are about a million more lawyers than anyone needs, and they are all in hot-blooded competition with one another. Indeed, if a society has more litigators than it has meritorious lawsuits, one effect you would predict would be an upswing in silly soda lawsuits.
The previous comment only served to strengthen my point that people who believe in free-market solutions to everything else in society will come up with excuse after excuse to explain why free-market principles don't justify lawyers' fees. I'm quite certain that lawyers are not the only profession licensed by the state, even if they are the most fun to demonize.
Also I'm not sure what libertarians have disputed that free market principles justify lawyers' fees, or that I even know what that means. I'm moderately libertarian and I have no problem with Bill Lerach or Fred Baron or whoever taking advantage of the current state of the law to make gazillions of dollars. But what does their entitlement to profit from the current legal regime have to do with whether the law should be changed, either in the service of "tort reform" or otherwise?
Also I'm not sure what libertarians have disputed that free market principles justify lawyers' fees, or that I even know what that means. I'm moderately libertarian and I have no problem with Bill Lerach or Fred Baron or whoever taking advantage of the current state of the law to make gazillions of dollars. But what does their entitlement to profit from the current legal regime have to do with whether the law should be changed, either in the service of "tort reform" or otherwise?
I'm not a lawyer, but (or thus) I can tell you what intuitively bothers many of the layfolk out here about the McDonald's verdict and others like it. It's not some kneejerk antagonism toward lawyers or lawsuits or civil courts. It's the instinctive sense that such cases run roughshod over basic concepts of personal responsibility and free will.
When you characterize these coffee injuries as results of "McDonald's actions," you're begging the question. McDonald's didn't pour hot coffee onto anybody. McDonald's didn't tell anyone that its hot coffee could be poured onto human laps without consequence. McDonald's didn't mislead anyone by claiming that the stuff it labeled "coffee" was actually chilled water.
A woman spilled hot liquid on herself. Hot liquids can burn skin. The woman's skin burned. For most of us, that's where the whole thing starts and ends. We don't see the relevance of some other party's in-house "Coffee Temperature Brewing Standards," or their "profit" motivations. We see a woman who, of her own volition, possessed hot liquid in a cup. For most of us, the fact that there's a reflexive pronoun in the statement "She spilled it on herself" does all the explaining we need.
That's the difference between the McDonald's case and the cell-phone hypothetical outlined in the post below yours. The latter involves active fraud, deception and breach of contract. The McDonald's case -- or, say, the prospective Coke case -- is nothing like that. You can make it become like that only by convoluting the language. "Fraud," for instance, becomes "Well, arbitrary group X brews coffee at arbitrary temperature Y, and McDonald's brews its coffee Z degrees higher than that for arbitrary reason Q," etc. Or you employ the passive voice so that plaintiffs, rather than committing injury, now "are injured."
That sort of verbal trickery and appeal to emotion may work wonders when delivered live in front of a captive jury. But you can't expect the rest of the world not to scratch its head and say, "Hold up... What does McDonald's have to do with some person spilling hot coffee on herself?"
Judges and “the system” used to limit such piracy... but unless the judges, elected in the plaintiff friendly counties stop this, one can always go through several juries until one finds one that the crying, channeling, trial lawyer connects with. It really only takes one good (or bad) jury when the rest so the system has abrogated it responsibility. Trial Lawyers Inc is alive and well and one the biggest industries we have. How do we export it?
McDonald's brewed their coffee at least 20 degrees hotter than other restaurants because it allowed them to brew slightly more coffee per pound
Am I missing something here? Coffee is brewed with boiling water; boiling water is 212 degrees. Water doesn't get any hotter than that; it becomes steam. Logic tells me that all coffee is brewed at the same temprature of 212 degrees. So what hokum did the lawyers use to convince the jury that MacDonalds brewed their coffee at 232 degrees?
Le Messurier
http://hypertextbook.com/facts/2003/DianaGendler.shtml
http://www.virtualcoffee.com/April_2000/decaf.html
Doesn't look like everyone brews at 212.
http://hypertextbook.com/facts/2003/DianaGendler.shtml
http://www.virtualcoffee.com/April_2000/decaf.html
You are missing a lot. Coffee can be brewed with boiling water, but it won't taste very good. It is generally brewed at lower temperatures than that. In fact, one not uncommon method has it "brewed" at room temperature, with the resulting concentrate diluted and then heated.
More often, it is brewed at something under 200 degrees. Temperatures in the low 190's are considered ideal according to some sources, but it would hardly be surprising if many restaurants used lower temperatures than that, leaving plenty of room for McDonald's to brew its coffee at a temperature 20 degrees higher.
The "hokum" used by the plaintiffs lawyer is something known as "facts."
If you don't like trial lawyers, then join me, along with The Economist, and support a fat tax! you are paying one anyway, just indirectly and after the fact. An "ounce" of prevention of a fat tax is worth a "pound" of class action cure.
Or I guess we could allow the soda companies to export the costs of their products onto society, but cut the kids of medicaid (or insurance). Unfortunately, then we pay even more in local property tax when they go into diabetic shock and go to the emergency room and stay overnight at the county hospital.
Hmmm, can we get rid of the hypocratic oath and allow hospitals to turn away emergency room patients who don't have enough money? what would jesus do?
Talk about a slippery slope!
Seems like a good idea to me... saves money and encourages good health at the same time. Good incentive for parents to encourage healthy eating and exercise habits in their children which are sadly lacking these days.
Was that meant as a joke? Did the Economist really promote the idea? Do you have a link or citation?
VS
...verbal trickery and appeal to emotion may work wonders when delivered live in front of a captive jury. But you can't expect the rest of the world not to scratch its head and say, "Hold up... What does McDonald's have to do with some person spilling hot coffee on herself?"
'"Hokum" is a stock technique for eliciting a desired response from an audience.' Hokum is something either 'untrue, insincere or nonsense' that appears impressive.
"That's the difference between the McDonald's case and the cell-phone hypothetical outlined in the post below yours. The latter involves active fraud, deception and breach of contract. The McDonald's case -- or, say, the prospective Coke case -- is nothing like that. You can make it become like that only by convoluting the language. "Fraud," for instance, becomes "Well, arbitrary group X brews coffee at arbitrary temperature Y, and McDonald's brews its coffee Z degrees higher than that for arbitrary reason Q," etc. Or you employ the passive voice so that plaintiffs, rather than committing injury, now "are injured."
I don't remember the facts of the McDonald's coffee case too well, but didn't she suffer 2nd and 3rd degree burns, requiring hospitalization and surgery? Nobody expects that if they spill their coffee, they're going to end up needing skin grafts. (or whatever.) Can you honestly say that the injuries sustained in this case are simply ones invented by convoluting language?
I think that some of the backlash to the McDonald's case isn't so much a matter of the plaintiffs convoluting language, as it is a case of selective memory.
As someone pointed out above, American style coffee is not brewed at boiling. Temperatures for home drip coffee makers are about 140 degrees F. IIRC, McDonalds was brewing their coffee at about 180 degrees F.
Automatic, you're not really getting the point.
You have this idea that the tort system is there to punish people for being bad. That's not really what it's about at all. It's really and truly a system designed to make the free market more efficient. "Negligence" isn't really about someone being morally culpable -- and strict liability certainly isn't! Under the tort system, the market players are free to conform their actions to whatever is the most profitable for them. What they can't do is effectively force society to subsidize their profits by externalizing the costs of their activities and engaging in activity that, when viewed as a whole, does more harm than good.
Once again, "fault" isn't really the issue. If you get in a car accident, it's not the car maker's fault. Nonetheless, if the car maker intentionally designs a car that has a 10% chance of exploding on impact because it's 1$ cheaper than one that doesn't, we hold the car maker liable. We hold the car maker liable because it's good economic policy to do so. Everybody, except the car maker, will agree that, under the terms of this hypo, this really is a good thing.
Once again, you can argue that the tort system can be made more efficient but it's absurd to argue that the tort system is bad.
I think we need to find an alternative to litigation for these types of public harms: for lead paint exposure, tobacco, asbestos, and the like. The amount of money from these types of cases distorts the whole process.
A few problems here. One, these types of cases often deal with disparity in available information. As alluded to above, it is quite clear that asbestos producers (and for that matter the government) knew a lot more about the consequences of using that product than did those who were exposed to it. Two, these types of exposure cases deal with injuries with very long latency periods.
So, you have a bunch of individuals who knew little--if anything--about what harm they were exposing themselves to who realize later (after information can no longer legally or realistically remain unshared) the source of their injury. That is why the tort system in these cases is most often backward looking. Why not hold a company liable that knew of a risk that its product posed, but chose not to disclose or protect against it for the sake of keeping costs down and profits up?
That's not what I wrote or implied. For all I know, the entire bottom half of her body is gone because it melted. What I wrote is that only by convoluting language can McDonald's be blamed for injuring her in the way your cell phone firm can be (legitimately) blamed for harming its customers.
Re: assignment of liability, rather than injury, in the McDonald's case. (I wanted to make this point in the last post, but I was sidetracked by the "injury" point.) The assignment of costs in a product liability case has much to with pricing an efficient amount of risk.
One way that the tort system tries to accomplish this is to place the cost of minimizing risk with the party who can minimize risks cheapest. (Otherwise, risk would be overly expensive, and we would have too little risk.)
In the McDonald's case, you could allocate the cost of risk to:
1. Everyone exposed to the risk.
2. Everyone whose risk materializes into injury. )
3. Everyone who imposes risk.
A couple of options:
a) Do nothing. The cost of risk is borne by people whose risk materializes into injury. (i.e. the woman in the burn unit.) Persons with knowledge of such a risk will then adjust their demand price by this cost, discounted by the probability that this risk will materialize into injury. (thus my point about whether people may expect a coffee spill to land them in a burn ward.)
b) Imposing the cost of risk on McDonald's. McDonald's can then, to the extent that the market allows, pass this cost onto consumers of risk. The cost of risk is allocated to both the imposer of risk, and all those who are exposed to risk, whether or not they know of the risk.
Option (b) is a more efficient mechanism to govern risk for 2 reasons:
1. Information costs. Consumers who happen to know the probability of such an unforeseeable event (i.e. spilling coffee may land you in a burn ward) will put this cost, discounted by its probability, into their demand price. The information costs of this pricing mechanism are greater than by having McDonald's put this risk premium into the price of the coffee, because McDonalds can collect such information of the costs of such risks more cheaply.
2. Of all three categories (imposer, exposed, victim), the imposer can usually minimize the risks that an activity creates most cheaply. Because McDonald's makes and sells the coffee, it can more cheaply minimize the likelihood that a spill might require skin grafts than can a person drinking their morning cup.
TS: Surprisingly, many people (like Hugh) think "fault" actually IS the issue. They feel that it would be unfair to hold them liable for doing something that they could not have reasonably believed was wrong or harmful at the time they did it. Some of these, for instance, are CERCLA defendants who may now be liable for actions that were legal (even legally mandated) at the time they did them (I'm thinking of all those small businesses who diligently disposed of all manner of waste in landfills during the 50s and 60s because that's what the government said to do).
At any rate, I suspect that more people believe the tort system is (or should be) about righting wrongs than believe it should about increasing market efficiency. In fact most people think it's not only not absurd, but self-evident that persons shouldn't be required to pay over large sums in damages if they didn't do anything wrong. Indeed, the view that efficiency, not culpability, should drive such decisions is the kind of notion people think of when they hear the dictum (attributed to Orwell) that "some ideas are so ridiculous that only an intellectual could believe them."
Q: Why have tort, when you can have criminal law?
A: We already have criminal law. To make tort law into criminal law would be redundant.
Q: It wouldn't have to be redundant. It could be a new kind of criminal law, i.e. criminal law in the hands of private persons. What about that?
A: Our political theory has traditionally placed criminal law and the power to punish with the state. (This is, I believe, a main political tenant of why government rather than state of nature in theories of Hobbes, Locke.) But hey, what the hell.
If my car explodes during the accident, you mean. But "liable" for what? Further, who is "we" -- and why do y'all care about a voluntary exchange conducted between some automaker and me? If my automaking pal had said, "This car doesn't explode upon impact," before I bought it, and then it exploded upon an impact, maybe I'd want to seek redress. But I certainly don't want any "we" attempting to read minds via a courtroom -- trying to guess if the reason a car exploded is that somebody you don't know was trying to save $1, etc. It seems weirdly arbitrary and selective.
If someone misrepresents a product, sure. I get it. You told me this cup of liquid you sold me wouldn't destroy my skin, and then it did; I'll sue you. You and I agreed I would pay $40 each month for the phone plan you sold me, then you charge me $42.30; I'll sue you.
Those are instances of clear misrepresentations. But the McDonald's/tobacco/Coke scenarios aren't at all. They rely on some subjective assessment of expectations (this thing called "coffee" should not scald X amount; this thing called "a soft drink" should not have X amount of addictiveness) to determine, after the fact, the level of "misrepresentation" that was in play.
Well, I don't know who absurdly argued that the tort system is bad, but it wasn't me. In fact, in my post I pointed to a specific scenario and argued its legitimacy. If there's anything to be inferred from my post, it would be -- yes -- that that the tort system can be made more efficient.
Wow, this is really running far afield! You're talking about (as I'm sure you know!) about figuring out who's the "Least Cost Avoider." The only real disagreement I have with your post is that it's not always the imposer (in fact it's usually not the imposer) who's the LCA. Most often, "liability" is imposed on the person suffering the injury.
Some people have peanut allergies. It does not follow, however, that we require peanut manufacturers to compensate people injured by eating peanuts. People eating peanuts are the LCA and so the burden falls on them to avoid the injury -- if they get sick from eating peanuts, they've got to bear the cost.
Note that this could change at some point. If enough people acquire peanut allergies, peanut manufacturers will become the LCA and will be required to take all sorts of precautions to ensure that there is no inadvertant exposure to toxic peanut dust.
At its most basic level, that's what's wrong with the soda suit. The LCA is the fat kid who actually pays money for the privilege of sucking down flavored sugar water.
There's two ways to argue with law's "subjective assessment of expectations" that a coffee spill will not put consumers in the hospital.
(1) Tort should not be in the business of assessing consumer expectations; or
(2) Tort should make the opposite "subjective assessment of expectations", i.e. consumers expect coffee spills may put them in the hospital.
I assume that your point is (1).
(a) Both tort and contract set up legal liability (i.e. risk allocation) rules that secure expectations of voluntary transactions, allowing free markets to function efficiently. (contract: pre-transaction, tort: post-transaction.)
(b) Much of contract law is explicitly based upon assessments of market expectations (e.g. obligations of good faith and fair dealing, implied warranties of merchantability, habitability, etc.)
(c) Why should tort law not likewise make such assessments?
Oddly enough, all these concepts are incorporated into the tort system. The tort system, which is almost entirely a creation of the common law, is actually a pretty impressive intellectual edifice.
For example, if the the car manufacturer made full disclosure about the risk of the car blowing up and gave you a choice (or at least told you it could be) of mitigating it for 1$, you'd probably have no case. But absent an express disclosure, you have to look at what a reasonable consumer would expect. None of this, "Well, we didn't tell you it wouldn't blow up, either!" In other words, if you voluntarily and knowingly assume the risk, you're on your own. This does not, of course, prevent us from having a discussion on the meaning of "voluntarily" and "knowingly."
Second, your assumption of risk does not, of course, extend to third parties. If you get in an accident and the car blows up, injuring half-a-dozen innocent bystanders, it's only fair that they come after you, for knowingly driving this ticking bomb and the manufacturer for knowingly building it. After all, they never agreed to accept the risk that you did so why should they by exposed to it?
Yeah, I haven't made up my mind about the soda suit yet. If it were adults involved, I would absolutely agree with you. The confounding factors here are (a) that they are children (who we hold to different expectations in contract); that they are (b) legally required to be in the building; and that (c) such contracts are often exclusive, stocking the building with the (d) sugar. Right now, I'm a little more on the side of holding parties responsible (if anyone) for (b) and (c), rather than (d). But again, I haven't made up my mind.
If the plaintiff"s lose - let the plaintiff"s artornies pay the defendants costs (and let us compute costs acurately including mental torure- pain and suffering, loss of consortium cause i was so worried i couldnt do it). And of course if the plaintiffs have deep paockets they can pay too. but let us level the playing field here a little bit. Let us impose some costs on our litigators.
plaintiffs attornyes get a free ride at times. let us not confuse thier own sweat equity with real equity.
A pity laws are written by lawyers, and judged by lawyers, and argued by lawyers, so that it's essentially impossible to get any law passed or upheld that's detrimental to the interest of lawyers. Quite the closed system they've constructed, isn't it?
let the lawyer pay
frivolous lawsuits at present have NO cost associated to them by these damn plaintiff lawyers
lets us send some of these guys into bankruptcy too
(ignoring the fact that this "solution" is no more "free market" than is having each side pay...)
frivolous lawsuits at present have NO cost associated to them by these damn plaintiff lawyers
(ignoring the entire economics of prosecuting a lawsuit...)
The mere fact that lawyers have an incentive to find clients doesn't seem like such an abnormality in a free market system. Perhaps you would like to place (further) restrictions on their ability to advertise, etc. Which might be fine, but don't dress it up in libertarian garb. That emperor has no clothes.
More generally, before you give a "solution", you're going to have to give an account of what the problem is. And, before you say "too many frivolous suits", tell us from what standard you measure "too many" from, and what standard you measure "frivolous" from. If not market allocation of risk, what would you propose the purpose of tort should be? If it would actually be more efficient to have a "loser pays" system, I'm open to it. Perhaps the current system is wrong with respect to market efficiency. But, somehow I doubt that you'll come to this conclusion once you give a realistic assessment of the business side of plaintiff work. (And if you're not privy to this kind of info, just think about the number of big defense firms relative to big plaintiff firms; think about how many kids coming out of lawschool, looking at their potential earnings, choose plaintiff work over defense work; think about how many rich defense lawyers you know relative to how many rich plaintiff lawyers you know.)
Free Marketeer has pretty much nailed it. Before you can decide that cost shfiting is the solution to the problem you need to decide what problem it is you're trying to solve.
The fact is that legally frivolous lawsuits are pretty inexpensive to deal with. There are several mechanisms for sifting out truly frivolous claims and for shifting the costs associated with them.
The problem is, of course, that people who want tort reform aren't complaining about legally frivolous lawsuits. They're complaining about legally meritorious lawsuits that they don't like, the McDonald's coffee case being Exhibit 1.
I think you'll find that the number of actually frivolous suits, especially class action suits, filed by plaintiffs is quite small. I think you'll also find that class action suits that get filed are, on average, far more likely to be meritorious (i.e. winners) than the average lawsuit.
There are a couple of reasons for this. First, in a big class action suit, the facts are typically pretty easy to prove given that whatever you're complaining about happened to thousands or even millions of people. Second, market forces dictate that it be so. Plaintiff's lawyers look on big class action suits as a business proposition. They will be required to invest considerable funds and considerable time and effort in prosecuting the suit. If they lose, they get nothing. Since they're putting their own money on the line, they have a considerable personal interest in ensuring they're bringing a solid legal claim.
You don't hear tort reformers complaining much about frivolous lawsuits that get thrown out of court. You only hear them complaining about "frivolous" lawsuits that the plaintiffs won. Cost shifting would do nothing to alleviate this problem, if problem it is. Rather, it would make it that much worse for defendants.
But I can't really tell what Todd Zywicki's take on all of this is. I would be interested if he agrees with these basic propositions and believes their application to the present soda-in-school case argues against suit; or if he takes issue with them at large.
Agreed, they are. The problem being that that is less a defense of the tort system, than an indictment of the legal community.
Just so long as we are straight that the current political strategy of denouncing plaintiff's lawyers is, in actuality, a broad-based attack on fundamental pillars of tort. (not, as it poses, a courageous stand against all-powerful lawyers.)
I'm open to new legal ideas, but I don't think that such is the goal of the political strategy.
The goal is to attack persons who give more to democrats than to republicans, and to defend people who give more to republicans than to democrats. Thus why both parties are so unprincipled in their approach to tort.
(e.g. Republican party, supposed to be for state's rights. Yet they take multistate class actions out of state courts and put them into federal court, even if they are based on state law. (so federal courts are chosen as the superior forum in which to adjudicate state law.) Then, claim this overburdens federal courts, so had better do something to get rid of cases. Politically easier than simply preempting state law in the first place, but with consequences that are nonetheless as philosophically dishonest.)
1. let us take fre marketeers and that ts dudes arguments and dump them out the window. let us face it they are selfserving arguments from teo who profit immensely from this highway robbery.
2. the enormous amounts of moneyt flowing to the tort lawyers has essentially corrupted the system completely. the judges and the politicins especially of the dem variety are completely beholden to tort lawyers money. and therefore cannot and will not pass necessary legislation to even counter the obvious abuses. and the judges- the less said the better. Som you have a system bythe lawyers of tyhe lawyers and for the lawyers.
3.Class action: let me illustrate with an example. I once filled out the docs that i had got in the mail re a class action tort brought against a major ilfe insurer. eventualy i agot a letter asking me to call xxxxx to get my settlement. after wasting an not inconsiderable amount of time. here is what i learnt, I as a party/ plaintiff in the tort had recvd a coupon that gave ema discount if i purchased more life insurance at terms that were even more unfavorable than what i had origionaly purchased it at. the bloodsucking plaintiff attorney made out w 16 million. nowhow did this process benefit anyone other than this rapcious trial lawyer. the corporate entity got off cheap. the plaintiffs got screwed, any corporate costs got pasweed on to the consumer. grewat eaxple of the tort system at work.
2. med mal even worse. (and then you have what do you call it -joint and several lability.) great scam if you ask me just search for the deepest pocket to pick. a physician aquaintance of mine just went bankrupt. he is arguably the best surgen in his field in the midwest. he is the best surgeon because he is aggressive and brilliant. he takes cases noone else will touch and saves lives noone else could.
well he was operasting and due to an anesthsiologists error in judgement ( no malfeasance here an honest judgement error by the anesthesiologist- lawyers i think are the only ones who do not make mistakes)- no fault of the surgeon. pt had a bad outcome. anesthsiologist unfortunmatelky died before the trial. so my acquaintance got hit w a 6 million settlement.
well he is no longer as aggressive as he used to be, and so kids die without surgery. and atla and its denizems have blood on thier hands.
3. the judges: they too get so much miney and favors i presume from the atla types that they are unwilling to let the defense have alevel playing feild.
4. when these juries hand out those billion dollar settlements do theyu have any idea what amillion or a billion is , or do they just just keep adding zeros at the behest of ashark ina sharkskin suit.
5.ultimately the conclusion i have come to is that the mebers of the atla are the most corrupt and corrupting infuence in the us today. their tactics are no different from extortion.
loser pays would work great by me. and let us just have loser payments on the same scales as astronomical payments that these bottom feeders demand.
along with fortune 500 companies going into bankruptcy under the pressure of ridiculous sttlements, let us see some trial law firms go into bankruptcy too. then we would have market mechanisms coming into play. file BS lawsuit and lose -and go under.
Let me ask you a question. Suppose that every civil lawyer earned no more than $20,000/year, paid by the taxpayer. The taxpayer also picked up all costs of all suits. (all lawyers, and all suits, miraculously, remain the same in type and number.) All awards from all suits went straight from the defendant to the plaintiff. Everything else stayed the same. Would this be an acceptable compromise?
If so, what is your problem with lawyers, that you presumably do not have with other professions? (say, your own.)
If not, what is your problem with current legal liability rules? Do you think they are inefficient? If so, then you and I philosophically agree, and you can show me how I'm wrong. Or is efficiency simply the wrong criterion? (ignoring all other commitments of political philosophy that you presumably might have.)
And you're right, asking lawyers about the law is generally a bad idea. Actually, better not ask the consumers either: they also have a dog in the fight. The only safe path to knowledge is to ask people who don't care. They'll probably be pretty well-informed.
Where's Ted Frank when you need him? These "salient facts" are, in fact, always mentioned, despite being (a) untrue, and (b) irrelevant. 700 complaints -- not of "serious" injury, but of any injury -- is evidence of safety, not negligence, given the number of cups of coffee McDonalds sells.
Every case has clients, otherwise no standing.
"tort lawyers do not operate in the free market."
Doesn't the very practical cost/benefit rational governing whether to prosecute a case (expected revenues of a case and expected costs of a case) subject it to market constraints? (e.g. expected revenue from making a pizza, expected cost of making a pizza.) Westlaw ain't cheap. And discovery and expert testimony can get astronomical. Sometimes it sounds like the costs of bringing a case are minimal, and the government is in love with handing money out. I, personally, simply don't have the funds to bring most of these cases.
Isn't (4) answered by (3)? The entire purpose of proximate causation (3) is to cut off liability from but-for causation (4)? (using concepts, e.g. of foreseeability, intervening and superceding causation, etc.)
Were it as foreseeable, at the time of sale, that a sale of sweatpants is just as likely to put a purchaser in the burn ward as is a scalding cup of coffee, then there would be no principled basis to distinguish between McDonalds and Clothing Manufacturer with respect to proximate causation.
But his supposition is counterfactual: there are obvious differences in foreseeability, and thus proximate causation limits the liability of the clothing manufacturer, but not mcdonalds. 700 complaints are not "irrelevant" - I would guess that the clothing manufacturer did not have 700 complaints, but McDonalds did. The relevance of these complaints goes to the foreseeability of the injury and liability-limiting doctrine of proximate causation. That customers forwarded complaints to McDonald's, and not to the clothing manufacturer, protects the clothing manufacturer, even if it exposes McDonalds to liability for selling coffee that may put you in the hospital.
Personally, I think that the whole idea of a tort is a scheme by three lawyers (one of them in a black robe) to defraud the weak. Yet I think that if torts were done away with the big losers would not be the Stella's of the world but business. Torts provide a safety net for the buyer and a policing tool for "honest" businessmen. In essence, they disperse risk. Absent torts, people would, over the course of years, simply stop buying. The risk would not be worth the reward. Absent buyers, companies would go under. I have said and continue to think that Ralph Nader is a great capitalist; he is a gardener pruning the weeds.
Logically, I think that the Free Marketeer is right. Very smart analysis. The difference between him and I is one of values. I believe in personal reasonability from a moral perspective. But any businessman who supports tort reform is either an aggrieved loser, an idiot, or confused.
That is, in fact, part of the problem. That in fact the legal system does a terrible job of "sifting out truly frivolous claims," because it defines "frivolous" so narrowly that it bears no relation to the common meaning of the term. The McDonalds case is a classic example, but hardly the only one. There were the two black women who sued Southwest because a flight attendant spoke a nursery rhyme. There are the Banzhaf-inspired suits against McDonalds for making people fat. And there is, of course, the soda suits being discussed in the instant post.
To the extent the legal system fails to identify these suits as frivolous, that's a failure of the legal system which requires tort reform, not a problem with tort reformers.
And this is false, as well. You might want to check out, e.g., Overlawyered.com, which regularly chronicles ridiculous suits as they're filed, not only after the verdicts come in.
You ignore the fact that these suits are often designed, as (for instance) the gun suits are, to implement a particular state's law on a national level. It doesn't make sense to talk about "state's rights" when one state is busy trying to impose its particular policies on the people and economies of other states.
Of course, we don't have a free market system--the government essentially has a monopoly on the use of coercion. It also imposes a cost on society (please, God forgive me for writing that half truth) which the tort lawyers can externalize onto society to further the big payoff they expect when the finally get a neutered jury to see things their way. Judges and or juries should be able to say, "loser" or "filer" pays.
This seems like a natural and almost unabusable check on abuse of process.
Yours, TDP, ml, msl, &pfpp
Can you say lawsuit? I knew you could.
"Why didn't I think of this!!"
When they file just be carful you don't trip and fall in the slime.
Le Messurier
Yours, TDP, ml, msl, &pfpp
Well, in a national marketplace (and globalized economy) it is hard to test whether a state law is intended to "impose" its values on others (other states, or other countries), or simply that power sufficient to govern itself will also govern others. But I'm not sure that motive matters, for the point at hand. I don't contest the power of Congress to impose values on states because they are acting upon a national market. (There's no "not doing" - by saying no liability, that's the effect of Congress' action.) If Republican Congress wants to do it, they can. (and, if Democrats even have control, they will undoubtedly try the same thing. And which point Republicans will talk about state's rights.)
I'm just saying that it is duplicitous for Republicans to not simply preempt state law. Because that's the effect: Republicans don't care about the proper forum in which to litigate a state tort claim. What they really want to do is impose substantive tort law. They just don't want the political costs associated with doing so.
Tort, as it currently fuctions, deserves to be subject to broad based assault. The "efficiency" instead of fault based nature of current tort theory amounts to nothing more than the legal community's effort to turn tort into a system of regulation parallel to legislation, but without the democratic constraints actual lawmakers operate under.
Want a rough definition of a "frivolous" lawsuit? Easy: One with so little chance of prevailing on the merits that it wouldn't be filed if a system of loser pays was in place.
Oh really? It's the nature of most clothing to be soaked through when liquid is dumped on it, it is in the nature of coffee to be hot enough to burn, and when you spill something on yourself, it is your own fault.
As long as we are going to give mythical externalities legal weight, I can tell you from personal experience that when McDonald's lowered the tmeperature at which they brewed their coffee, it became less valuable to one guy I know because it cooled off even in his Thermos(tm) before the end of the workday. He used to but a carafe and fill it at the drive-thru window. How is he to be compensated?
YOurs, TDP, ml, msl, &pfpp
Your argument proves too much: Why, if plaintiff lawyers can externalize costs and internalize benefits, aren't more plaintiff lawyers rich than defense lawyers? Why do most graduates with a choice go into defense work rather than plaintiff work? Expected salary is higher, for most people, in defense work.
Tort is certainly a "system of regulation parallel to legislation." In fact, all common law is. Every 1st year student learns Contract, Tort, and Criminal law. These are common law doctrines, i.e. judically-created and able to be legislatively superceded by statute. Common law, like all law, operates to regulate the behavior of those under its jurisdiction. This is an elementary proposition of the nature of law. Today, most common law doctrines are, mixed with statutory law.
So, if you want to make a broad-based attack on tort, it shouldn't be on the grounds that it "tries to regulate people", unless you just don't like the nature of law itself.
If you want to make a broad-based attack on tort, because you don't think that a law that regulates market transactions should have the purpose of ensuring an efficient marketplace, go ahead.
b) Free Marketeer wrote:
"Absent torts, people would, over the course of years, simply stop buying."
Horse feathers! What would happen is, that the value to consumers of bodies like Consumer's Reports and UL would rise, and they would rise quite a lot. This would give rise objective evaluations of risk and a better informed consumer, obviating such shrill, gotcha shakedown artists as Nader has become (if in fact he was ever anything different).
Of course, if would disempower lawyers...
...Oh wait, where's the downside?
Yours, TDP, ml, msl, &pfpp
By paying less.
Negligence liability is defined by taking reasonable care to prevent foreseeable injuries to foreseeable persons. If you honestly think that it is as foreseeable, at the time of sale, that a sale of sweatpants is as likely to cause burns as a sale of coffee is, I don't know what to say. If you think it is more efficient to allow McDonalds to injure people by acting unreasonably, I'd be open to argument.
I didn't write that.
This reminds me of the current auto-insurance regime in which individuals can pay the lower rate or the full tort rate. Name one person who can afford the difference in rates who will waive her rights to sue above simply economic damages? Instead of eliminating "frivolous" pain and suffering suits, that privilege is reserved and exercised unabashedly by those with the means to do so.
The marginal cost of ensuring that costs are reflected in price are lower, by localizing it with McDonalds, rather than relying upon consumers spend all of their time reading about risks associated with all products they are considering buying, and their substitutes. (They wouldn't do, because the opportunity cost is so high, and thus just use a inaccurate heuristic to calculate the risk premium.) Not to mention it is cheaper to have McDonalds investigate than to have outside parties investigate.
I would also guess that since the defense work is the more sought after, that the more skilled tend to get into it. Hmmm.
It only proves too much in your eyes, because you do not admit enough to be true, that lawyers DO generally become lawyers expecting to make a lot more money than most people, and there are too many lawyers for that to happen, by rights. Currently the tort system is operating in such a fashion that lawyers do not bear the full costs of the lottery the government is operating for their benefit, by which some of their number WILL become filthy (as to honestly) rich by lucking onto a jury which as will agree to their sillier claims. The Stella/McDonalds suit is such a claim--coffee can burn, so it is your fault if you burn yourself by spilling it on yourself.
It isn't an efficient marketplace. Lotteries of relatively unmerited funds are not generally--and not here--as efficient as informed decentralized decision making; and a market would arise for such information, count on it.
But it would shrink the market for laywers...
Yours, TDP, ml, msl, &pfpp
To which he replied:
I apologize. Am I correct then, by ellepsis, to assume you do not agree with it?
Yours, TSP, ml, msm, &pfpp
Yes. My rational is different, and is in my reply to your Consumer Reports post.
See, I think this is where we diverge. I (a) do not think tort is a lottery, and (b) think that the costs of bringing a tort claim are born by the the lawyer. (and I probably think that this is more expensive than you probably think it is.)
If your claim is (c) that the disposition of a tort claim (e.g. judgment, settlement) involves the transfer of economic value, and that such transfers are currently wrong, then we have to say upon what standard we evaluate "wrongness." I say economic efficiency.
If McDonald's shareholders profit from the imposition of risk, you will say they are honestly rich. If lawyers profit from the imposition of risk, you will say that they are dishonestly rich.
Example/ Lawsuit is probably a winner. (Has 51% chance of succeeding.) If successful, wins $1 million. Expected gross revenue: $510,000. Contingency fee = 30%, so expected net revenue = $153,000.
Costs of prosecuting lawsuit = $152,000.
Costs of defending lawsuit = $480,000.
If no loser-pays: Bring lawsuit that is probably a winner. (expected revenue = $153,000; expected cost=$152,000.)
If loser-pays: Do NOT bring lawsuit that is PROBABLY A WINNER. (expected revenue = $153,000; expected cost = $152,000 + $235,200 (i.e. 49% x $480,000) = $387,200.)