As you can tell from some of my recent posts (e.g., this one and this one), I think that some courts have broadened tort liability far beyond where it should be. But remember that one reason why people comment about such cases is that they strike them as wrong. Generally speaking, I don't say as much about cases that strike me as right (setting aside current cases that are already in the news). "Here's a case from some years ago that reached entirely the right result" isn't as fun for me to write, or as fun for people to read.
So please be careful about generalizing from some cases -- even quite a few cases -- that are in the news to the legal system as a whole; in particular, avoid generalizations such as this one, from a comment in this thread:
Tort law is no longer about duty, breach, causation, and damages. Rather, it is a mechanism for wealth transfer to an injured party.
Idiotic court decisions such as this one can be explained by the fact that there is a plaintiff with serious injuries (or as here, a death), and somebody nearby with a big pot of insurance money. Courts basically have gotten out of the gate-keeping business -- as long as some jury feels like redistributing a little wealth, the courts will not stand in the way.
Read tort cases, and you'll find lots of serious discussion of duty, breach, causation, and damages, and lots of cases thrown out of court before they go to trial on various grounds. There's plenty of gate-keeping still going on in various areas.
Perhaps there's less than there should be. Perhaps even a few bad apple tort decisions cause a lot of problems. But it's best to avoid, I think, generalizations about all courts or even most courts based simply on some of the high-profile cases, which are often selected for publicizing precisely because they seem wrong or at least controversial.
Which could open a whole nother post about judicial obfuscation...but i digress
One reason that generalizations about courts are so prevalent is that, in practice, law (like water) seeks its own level, which is generally the lowest level, or lowest common denominator. This is why defendants and insurance companies, instead of vigorously defending against cases such as that of a plaintiff burglar who is seriously injured as a result of falling through the roof of a building during the course of his burglary, settle those types of cases. Courts impact not only the litigants in the cases brought before them; they impact also the cases that defendants are afraid to bring before them because of the irrationality of what some judge or jury might do, to the detriment of all insureds who must pay increased premiums therefor.
the approach man, not the result. Please read more carefully before a snide rebuttal
The more I think about the Kelly case and the argument over duty, the more I want to get away from traditional notions of tort and go straight to the public-policy issue.
in another post about negligence just a few minutes ago today, should appreciate not only what I said, but the dissenting approach in palsgraf too...
And I don't think courts getting it wrong sometimes is much of an indictment. A lot of people get things wrong, being people, and that doesn't mean the system isn't working. Enron was pretty bad but it didn't prove the capitalist system wasn't working, just that it wasnot optimal.
Just keep the government out of it.
You conservatives and your never ending demands for big government - tort reform, Patriot act, more governmet funding for prisons, laws and constitutional amendments regarding restrictions on personal relationships. Leave us alone. Same goes for liberals, but the statement needs no exemplars.
I mean think of the cost to society. Soaking INNOCENT taxpayers for the free room and board for criminals. To the tune of billions of dollars per year.
Sorry, rant mode is affecting my typing.
It wasn't always like this. See indeterminate sentencing. It didn't have a ceiling, but it also didn't have a floor.
"We lost" or "We won" as applied to those whose interest in a case is merely political is way too common.
Once I got hooked on reading court cases (a very strange addiction for a non-lawyer, I know), I discovered how wrong such an attitude is. Courts sometimes make mistakes, but the reasoning is far more important on an appellate level than who wins or loses.
In the Kelly case, I don't think it is an issue of the duty test. Rather I think the problem is that EVEN when one considers the facts in the appellate decision as stated there in the most favorable light to the plantiff, saying the defendant had a duty to act otherwise doesn't pass the snicker test. In short the test becomes badly applied rather than fundamentally corrupt.
Now, there could have been considerable factual material not cited in the short opinion. I would have a hard time imagining that at the time summary judgement was ruled upon, all one had was a complaint and no additional discovery. So the court might have known something they didn't bother to tell everyone else, but it doesn't seem that way from reading the decision.
Very much agreed, it' the "approach" that matters.
If you want to comment on it, (or me when I'm talking about it) then yes, that does help.
Peace??? Peace.
Suddenly Torts stops being a lottery. Plaintiffs are made whole, but little more. Defendants are punished, but not by enriching plaintiffs.
I admit the big problem with this idea is that contingent fee lawyers wouldn't have that big jackpot to offset their 9 loser cases. So, some tweaking needs to be done.
I see no reason to be deferential to the Judicial Branch. They're an agent of the government and if a person thinks that they've become corrupt, just as a legislature or an executive branch or agency can become corrupt, then there's no reason to avoid comment on that.
Last I checked, judges are human and are prone to corruption, arrogance, and bias like all of us. In fact, given their position, I'd say that everything about them makes them more prone to those temptations. And I think that it's not unreasonble for people to conclude that many judges to succumb to those temptations.
And then there's the legal theories that have been developed which state that judges are supposed to give weight to empathetic politically favored parties, and to engage in their own inventions of law from the bench in the name of a living constitution, etc. So the legal philosophy catches up and gives a coat of legitimacy to their illegitimate actions.
For every complaint about how little the people know about judging, you can find a clerk who will tell you stories about a judge who made up his mind about a case and then asked his clerks to find a theory to support it. Hell, Justice Blackmun was well known for doing that.
I don't think we should be so quick to dismiss a concern that a decision which reasoning doesn't pass the smell test doesn't have alternative motivations behind its creation.
I don't agree with you much, but you are completely right here. When you find logical gaps in an opinion or twisted readings of precedent, you KNOW that it is dishonest. Such an opinion is less an explanation for the decision and more an attempt to hide the fact that the judge wanted to reach a particular result but did not have much to work with.
Or just count it on tax returns as income.
Last I checked, judges are human and are prone to corruption, arrogance, and bias like all of us. In fact, given their position, I'd say that everything about them makes them more prone to those temptations. And I think that it's not unreasonble for people to conclude that many judges to succumb to those temptations.
Well, the flock are supposed to be conditioned to be deferential to them. You know, they are supposed to be like priests.
http://www.law.com/jsp/article.jsp?id=1107783325065
I do agree here, FWIW.
Does it matter? Perception is reality. As long as a company or an individual believes that it may have to spend money to defend itself even if it will win in the end (or even if the case will be dismissed at an early stage), it modifies its behavior, which otherwise would be perfectly legal and ordinary. You know, just to be on the safe side. There is a big cost to the society beyond the results of a few exceptional cases.
But what is the job of counsel?
Typically you hire counsel to keep you from having to go through a trial. If you can't get it dismissed immediately, you don't want to have to go through discovery headaches, etc. So even summary judgement is too late if I am risk averse. But summary judgement I will take over a trial any day.
Few people define (and I suspect that includes lawyers) "legal trouble" as losing at trial. Most folks consider legal trouble to include the trial or even the whole process after being served a complaint. Do you hire a lawyer to get you through legal trouble? Or to keep you out of legal trouble?
Sure, if you are a billion dollar company. There are many small companies out there. A very large percentage of Americans work for small companies, high numbers of which is said to be among a big economic advantage for the US.
Dangermouse said:
Eugene wasn't saying anybody should "be deferential to the Judicial Branch." He was simply cautioning against overgeneralizing based a few cases.
But another (probably smaller) part of the problem is that blogs are conducive to heated, overgeneralizing argumentation.
There's no question some people bring questionable actions, and do so with poor motives. But in a situation where Dan has acted wrongfully and caused Paul's pain, why exactly is it unfair, or unjust, that Dan should have to make Paul whole, insofar as that is possible in a world where courts don't have jurisdiction to order miracles?
Incidentally, that's my problem with the Kelly case and the rooftop burglar case; a faulty analysis about causation, who was/should be responsible, not a faulty belief about whether it is fair for injured parties to be compensated.
The cruel reality is that there are thousands of law firms all over this country who sue for anything with no intention of going to court and every intention of costing the defendant as much money as possible and in such a way as to push them to settle. This is simply legalized extortion.
Actual trials have very little to do with this legal abuse (except that the few truly bogus cases reinforce the fear of defendants that they will lose big if they go to court.)
However, the evidence suggests the problems are far more significant in contract litigation (where frivolous, extortive suits are more likely). The focus on torts suggests that the critics are just running an ideological campaign rather than a thoughtful analysis of the judicial system. Torts plaintiffs are individuals who have suffered harm of some sort, contracts plaintiffs are businesses. Some people seem only to want to attack the former but not the latter. That seems odd to me.
Where did you derive your understanding of this "cruel reality?"
Linus, don't be ignorant.
Please allow your betters to explain things in a condescending tone.
We're not talking about people who were injured as a fault of others, but people who were injured and seek someone to blame and that someone is typically the person and/or company with the deepest pockets.
"We" prefer the royal "we" when "we" use vague terms... we don't like them, and by them, we mean people, and by people, we mean people that just get injured and blame others- what others, you might ask? Someone- those types of others, those types of others with deep pockets.
Moreover, there ARE many people who injure themselves on purpose with the intent to sue.
Moreover, the use of caps shows how SERIOUS we are, when we talk about these people, so many PEOPLE, who injure themselves constantly just to sue others (with deep pockets). How many? A large, vague, indeterminate MANY!
The cruel reality is that there are thousands of law firms all over this country who sue for anything with no intention of going to court and every intention of costing the defendant as much money as possible and in such a way as to push them to settle. This is simply legalized extortion.
We know about the cruel realities. Before we would menace you with the cruel "make believe" of many people and their intentions, but not face the cruel reality of thousands of law firms and their intentions, or lack thereof! Yes, thousands of law firms whose sole business is suing for no reason! Not even sole practitioners, mind you, but vast law firms. And thousands of them!
Actual trials have very little to do with this legal abuse (except that the few truly bogus cases reinforce the fear of defendants that they will lose big if they go to court.)
Please notice that we have segued from the use of the indeterminate "many" and fearful "thousands" to the use of words like "actual" to make this seem reasonable.
Of course, actual arguments have very little to do with this rhetorical abuse; we should know better.
Second, you don't have any clue who I am, or what familiarity I might have with plaintiff's litigation. But you plunge ahead with the condescension, willing to explain "reality" to me. Again, the awesomeness.
I'm well aware of people who are injured, and then look for someone to pay for their injury, because the person truly responsible (sometimes themselves) doesn't have any money. But it's just plain nuts to claim that people injure themselves on PURPOSE so they can file a lawsuit. Further, the actual reality is that most of the people I've just described end up either not filing (because the plaintiff's attorneys they talked to told them the case was a dog), or they file and LOSE. Hell, it's easy to be outraged by an outlier, but would it kill you to look at the big picture (which I gathered was the point of Prof. Volokh's post)?
1. In the vast majority (as many as 95%) of cases where there is negligence by a doctor a lawsuit is never brought. Research suggests the best predictors of whether a doctor is sued include whether the doctor comes across as arrogant or uncaring or if the doctor refuses to apologize for his mistakes, not whether he actually does anything negligent.
2. In those cases where a lawsuit is brought, there is no statistical relationship between the actual facts of the case, as determined by third-party medical experts, and the outcome of the case. A lot of undeserving people win lawsuits while deserving people have their cases dismissed.
So the idea that critics of the tort system are just picking on a few outlying cases is incorrect. In the well-studied area of medical malpractice law, the system on average fails to deliver results that are fair or predictable. I don't know whether this generalizes or not but it ought to give some enthusiasts for American tort law a moment of pause and it ought to also shift the burden of proof slightly.
[Incidentally, for those who want to make this a partisan issue, this information comes from Chapter 7 of "Nudge" written by current Obama Administration Official Cass Sunstein and Richard Thaler.]
Why is it that the phrase "with due respect" almost always means "What about about to say, I say because I have absolutly no respect for your argument?"
Or it could be that business owners are used to abusive lawsuits as a cost of doing business, can generally deduct losses, and more easily afford and retain professional counsel while individuals and small businesses can be cleaned out with a successful defense.
Or, perhaps it's due to the fact that the public generally regards the rich and large corporations as having the resources to defend themselves and aren't particularly sympathetic to their complaints whereas the prospect of the local mom n' pop or family doctor closing because some doofus wanted to hit the slip and fall lottery polls pretty bad.
Or perhaps it's due to the fact that the sleazebag lawyers of the contracts world don't advertise their sleaziness on daytime TV. And half the billboards in town. And on the back of every goddamn phone book I've received in the last decade at least.
Hey, at least he didn't say "with all due respect," which indicates respect for neither your argument nor you personally.
That said, Linus happens to be right (on the merits).
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.