Sunday, May 30, 2010

Oil disaster and Alabama AG race

Today I emailed or posted to Alabama attorney general candidates and to Alabama newspapers the following message:

To: _____
Sent: 5/30/2010_____P.M. Central Daylight Time

Subj: Alabama attorney general race and the Gulf oil disaster

Dear _______,

The oil disaster in the Gulf of Mexico illuminates an important, but possibly not well recognized, issue in the Alabama Attorney General race.

For Congressional candidates this year, the contemplation of the long term devastating consequences of the Gulf oil disaster has led to prompt reactions.

Obvious issues that are presented include whether offshore drilling should be limited and whether increased regulation of oil industry operations is needed, and, further, a federal law passed after the Valdez oil spill that limits the liability of oil companies has become a Congressional election issue this year as a result of the disaster in the Gulf.

Regardless of the policy outcomes that ensue from public and legislative debate about offshore drilling, regulation of the oil industry, and the federal law limiting liability, there is one thing that is very wrong related to the oil disaster for which Congress is responsible and which is relevant to the Alabama attorney general election.

I think it is very wrong that hundreds of millions or billions of dollars are going to be paid to plaintiffs' lawyers (and defense lawyers) related to the determination and finalization of BP's liability and to whom the liability is owed.

I don't think it should cost more than $50,000,000 to determine the amount of the liability and to whom it is owed. Hundreds of millions or billions of dollars should not have to be paid to lawyers for their role, and most of those amounts would be much better spent as part of the compensation paid to persons who suffer losses from the oil disaster. The moneys could also be better spent by not being paid at all and being kept by BP (that had the misfortune of being a cause of the accident) and used in continuing its legitimate business of producing oil for the benefit of the county, providing jobs, and paying dividends to hundreds of thousands of stockholders, big and small, including retirement plans, who are dependent on and deserving of financial returns from their investments.

How is this question about plaintiffs' lawyers relevant to the Alabama attorney general election?

State attorneys general, along with legislators, governmental regulators and prosecuting attorneys, work on behalf of the public to design, implement and enforce laws and regulations and a regime of legal punishments to protect the public from intentional corporate wrongdoing, negligence, and dishonest commercial activities. These public officials are compensated on a salary basis and they are not biased in in their work by their compensation being geared to the dollar amount of economic activity that their work affects (i.e., legislators and regulators don’t get paid millions of dollars because they put into effect large governmental budgets, levy commensurate amounts of taxes, and write and enforce laws and regulations that affect billions of dollars of economic activity and that impose and allocate large economic costs on and among businesses, consumers and other parties; further regulators, prosecutors and state attorneys general are not compensated based on the amount of fines and penalties they get imposed on wrongdoers).The work of plaintiffs’ lawyers in class action lawsuits and other litigations is also effectively part of the design, implementation and enforcement of legal punishments to curtail commercial and other wrongdoings. Their compensation is huge and geared to the amounts of economic activity that the plaintiffs' lawyers work affects and to the economic costs they get shifted around among various parties; the larger the scope of the plaintiffs' lawyers' lawsuits and the greater the dollar amount of the costs they can get shifted around, the greater their compensation. This manner of compensation of plaintiffs’ lawyers creates very powerful incentives for them to seek the objectives of (i) expansion of harms or detriments for which a payment should be made, (ii) higher rather than lower amounts that should be paid, (iii) expansion of liability where there is no fault, (iv) disregard of distinctions between intentionally culpable, negligently culpable and faultless parties, especially in the context of corporations comprised of a conglomeration of employees, shareholders and customers, (v) disregard of culpability of plaintiffs in their own injuries and harms, (vi) not having clear rules in advance about what is wrongful and what is not wrongful, so that a person does not know what is wrongful and cannot make a decision not to do a wrongful act, and exposing every decision and action to an ex post facto determination that it was wrongful and for which there is liability, (vii) disregard of rational cost/benefit principles, (viii) the invocation of junk science, and (ix) usurpation by plaintiffs' lawyers and the courts of the powers of the legislative branch and the executive branch regulatory apparatus.

State attorneys general should understand the unsalubrious effect that plaintiffs' lawyers may have on the public good through their class action and other junk lawsuits, their lobbying in Washingon DC and state capitols (including Montgomery), and their procuring of the complicity of state attorneys general to, among other things, retain the plaintiffs' lawyers on a contingent fee basis to represent the state in litigation against businesses.

The candidates in the Alabama attorney general election owe it to the voters to state their views on these issues concerning plaintiffs' lawyers. As horrendous and saddening as the Gulf oil disaster is, and as important as it is for there to be focus on how to plug the leak and on the undertaking of the arduous and very protracted recovery efforts ahead, now is also the time to put a spotlight on plaintiffs' lawyers for the public to consider the good they do, or they do not do, in protecting the public from intentional wrongdoings, negligence, and dishonest commercial activities, and in obtaining proper and just compensation for harmed members of the public.

There are only two days until the primary election. To the extent Troy King, Luther Strange, James Anderson, Michel Nicrosi and Giles Perkins have told the voters their views on the foregoing issues concerning plaintiffs' lawyers, I compliment them. If I, as a citizen, can do anything to call these issues to the attention of voters prior to Tuesday, I compliment myself.

Rob Shattuck
3812 Spring Valley Circle
Birmingham, AL 35223
(205) 967-5586

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