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Robert Bork's $1 Million Personal Injury Lawsuit:

Overlawyered and New York Personal Injury Law Blog have details and pointers to more details, and commentary. The latter blog suggests some of the claimed damages are extremely weak:

3. The Complaint doesn't even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.

4. The Complaint asked for attorneys fees. Why? You can't get them in New York for a standard personal injury claim.

5. The Complaint asks for pre-judgment interest. Why? You can't get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident ....

6. The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand? [EV: The complaint asserts that Judge Bork required surgery, and months of physical therapy, was rendered "largely immobile during the months in which he received physical therapy, preventing him from working his typical schedule before the injury," "suffered excruciating pain," and caused a continuing limp and a continuing need to use a cane -- it's possible that lost income coupled with pain and suffering would justify a substantial award, though I agree that $1 million seems high.]

I know zip about New York personal injury law, so I can't evaluate this myself; if others have contrary evidence about New York law, please let me know.

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Bork and the Barbary Pirates:

Bork in 1995:

Our expensive, capricious and unpredictable civil justice systems present precisely the kind of conflicting and costly state regulation of commerce that the Commerce Clause was designed to solve. Lawsuits, verdicts, settlements and the insurance necessary to defend and indemnify against them, are driving up the cost of goods and services everywhere, and consumers are paying the bill. The litigation explosion has no respect for the state lines because commerce and insurance are now national. Interstate commerce and trade have become the principal victims of a runaway liability system.

Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories. Today's merchant enters the marketplace with trepidation - anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.

Bork and Olson, Trial Lawyers and Other Closet Federalists, Wash. Times, March 9, 1995.

As I wrote in the comments to Eugene's post below, I don't think that someone with such views is in any way barred morally or otherwise from using the tort system to redress an injury, but as a prominent attorney himself, Bork could instruct his attorneys not to assert "far-fetched legal theories" (e.g., punitive damages for a routine negligence case), or to request a "lottery-like windfall" (over $1 million in damages).

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The Ethics of Benefiting From Policies that You Oppose:

David's post on Robert Bork's effort to take advantage of aspects of the tort system that he has condemned in the past, raises a more general issue: when, if ever, is it ethical to take advantage of the benefits of policies you oppose? Public figures on both the left and the right are constantly accused of hypocrisy whenever they benefit from policies that they criticize. Consider the attacks on Al Gore's extravagant energy use (indulging in practices that he claims should be curtailed to fight global warming) or the ongoing criticism of Clarence Thomas for opposing affirmative action even though he himself probably benefited from it. Going back in history, many of the Founding Fathers (including Thomas Jefferson, George Washington, and George Mason) owned slaves, even though they recognized that slavery was an evil.

Even we bloggers are not immune to the problem. For example, I oppose the deductibility of state income taxes from federal income taxes; high-tax states should not be subsidized by the rest of the country. Yet, every year, I deduct my state income taxes on my Form 1040, and save several hundred dollars as a result.

Which of these cases are defensible and which are not? There is no easy answer, but let me suggest a helpful way of thinking about the problem.

Some policies are wrong in an absolute sense: every individual instance of the practice they promote is an evil. Even if no one else owned slaves, Thomas Jefferson's owning some was a grave evil. In cases of this kind, it is indeed wrong to take advantage of practices that you oppose. Even if Jefferson lacked the political leverage necessary to get slavery abolished throughout the country, his failure to free his own slaves was a serious injustice in and of itself.

Some actions, however, are only wrong because of their aggregate effects. An individual instance of deducting state income taxes or burning oil does little if any harm. It is only the aggregate impact of these practices that does damage. Thus, no good would be achieved by my deciding to forego my income tax deduction. Only an across-the-board policy change would do any real good. The same goes for Al Gore and his contributions to the greenhouse effect. OK, maybe this is my way to get myself off the moral hook (even at the cost of doing the same for Al Gore). But I think that the argument is sound, even if self-serving.

What about Robert Bork and Clarence Thomas? These are intermediate cases, it seems to me. Some critics of affirmative action primarily decry what they see as its harmful aggregate effects (admitting lower-qualified students; increasing racial conflict; contributing to negative stereotypes of minorities as underqualified). Others argue that each individual instance of affirmative action is itself an injustice because of the "reverse discrimination" it inflicts on white and Asian students or job applicants. Critics of affirmative action who emphasize systemic harm are not being inconsistent if they take advantage of affirmative action policies where they exist. On the other hand, those who accept the benefits of AA even though they oppose it on absolutist grounds, are indeed complicit in what they consider to be injustice. One can make a similar distinction between aggregate and absolute criticisms of the tort system.

The bottom line: Not all people who benefit from policies they oppose are inconsistent or hypocritical. It depends on the policy in question, and on the reasons for their opposition to it.

NOTE: I am not going to regulate the comments. However, I think it will be more productive if people focus on the general issue of benefiting from policies that one opposes rather than on arguments about the merits of the specific policies that I used as examples.

UPDATE: Ted Frank of Overlawyered made a related point about hypocrisy and the state income tax deduction in this November post.

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The Ethics of Libertarian Academics Employed by State Universities:

Is it wrong for libertarian academics who oppose government ownership of universities to take jobs with state schools? This issue came up in the comments to my previous post, and is raised often enough on this site and elsewhere that I think the time has come to address it more systematically.

In an ideal libertarian world, all (or nearly all) universities would be private. However, we do not live in that ideal world and are unlikely to achieve it in the near future. Therefore, libertarian academics have only two choices: 1) take jobs at state universities (if that is the best or only offer available), or 2) refuse any such offers, thereby ensuring that all the jobs in question will go to advocates of statist ideologies.

Picking Option 2 does not reduce the overall amount of statism. The job will not be abolished, but will instead go to a nonlibertarian. Moreover, Option 2 also probably undermines the cause of libertarianism. To the extent that academics influence political debates, picking Option 2 means that fewer such opportunities to influence opinion will be in libertarian hands and more will be controlled by our ideological rivals. Obviously, picking Option 1 serves the self-interest of libertarian academics (myself emphatically included). But it's also the right choice for an altruist whose only goal is advance the cause of libertarianism (and, no, I am not claiming to be such a person).

Finally, it's worth noting that private universities are also heavily subsidized by government in ways that most libertarians disapprove of. And many public universities earn a significant percentage of their revenue through the (relatively) free market, in the form of tuition payments and alumni donations. From a libertarian point of view, the difference between public and private universities is one of degree rather than kind. If the "right" decision for libertarians is to refuse jobs at any school funded by the state in ways that we find objectionable, the result would be a complete absence of libertarian faculty at almost every school. That outcome is hardly likely to advance the cause of limiting government power.

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