An argument the plaintiffs' lawyers have is that the legislative branch and regulatory apparatus are corrupt and fail to represent properly their public constituency in the policy decisions they make, the laws they enact, the regulations they promulgate, and their enforcement of the same.
I agree that the legislative branch is corrupt and the regulatory apparatus is tainted.
I would only like the plaintiffs' lawyers to say, "We agree with your analysis and arguments about the civil liability system and the reforms that are needed, but you need to do something about the corrupt legislatures in the United States."
To which I say to the plaintiffs' lawyers, "Let us be join arms and use some of your billions of dollars of revenues to proclaim to the public the corruption of its legislatures and campaign to defeat all incumbent legislators on general principles."
Showing posts with label B1. Argumentation. Show all posts
Showing posts with label B1. Argumentation. Show all posts
Friday, November 9, 2007
Impact of plaintiffs' lawyers compensation
In trying to gauge how well the civil liability system performs as one of society's mechanisms for fulfilling the purposes of, one, providing compensatory payments to persons who suffer physical and financial losses and injuries and, two, regulating the conduct of society's members to lessen the harm they do to one another, the manner of plaintiffs' lawyers compensation creates enormous incentive to distort the civil liability system to serve the interests of the lawyers and to work against society's balanced interests.
As is well known, plaintiffs' lawyers compensation is largely based on the amount of liability that gets imposed on defendants and the amounts that they are required to pay. 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) disregard of rational cost/benefit principles, (vii) the invocation of junk science, and (viii) usurpation by them and the courts of the powers of the legislative branch and the executive branch regulatory apparatus.
As is well known, plaintiffs' lawyers compensation is largely based on the amount of liability that gets imposed on defendants and the amounts that they are required to pay. 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) disregard of rational cost/benefit principles, (vii) the invocation of junk science, and (viii) usurpation by them and the courts of the powers of the legislative branch and the executive branch regulatory apparatus.
The problem of the corporation
Corporations consist of conglomerations of individuals, and all financial costs and burdens imposed on a corporation are ultimately borne by those individuals. They include employees and stockholders, who can bear costs in the form of reduced wages or reduced profits and investment value. Insofar a corporation passes on costs in the form of higher prices, the costs are borne by customers.
When a corporation engages in wrongdoing, the wrongdoing is conceived and implemented by some of the employees. Other employees are completely innocent of any wrongdoing by the corporation, and stockholders and customers are likely to be innocent of the wrongdoing.
If a cost or liability is imposed on a corporation, little of the cost is likely to be borne by the employees who conceived of and carried out the wrongdoing, and most of the cost is likely to be borne by innocent employees, shareholders and customers.
To the extent the corporation received a benefit from the wrongdoing, and the benefit accrued to innocent employees, shareholders or customers, it is not objectionable if those innocent parties are held liable for returning the benefit that was wrongly obtained by the corporation.
At the same time, it needs to be kept in mind that the deterrent aspect of making wrongdoers pay is not being fulfilled by obtaining return from innocent employees, shareholders or customers, because those persons did not wrong themselves.
This analysis of corporations leads to a couple of conclusions about what is or is not just under the law.
First it raises the question of the legitimacy or imposing financial penalties on corporations that are borne mainly by innocent persons for the purpose of deterring wrongdoing, as opposed to penalizing and punishing the employees who designed and carried out the wrongdoing. This is not to say that a corporation should never be subject to financial penalties and punishment, but, at a minimum, that is something that should be approached with circumspection and is ultimately worthy of addressing by the legislature to make policy decisions.
Similarly, there should be sensitivity by the law that there may be a great lack of correlation between, on the one hand, what benefit was received by a wrongdoing corporation, and to whom the benefit accrued, and, on the other hand, who is bearing the cost if a liability is imposed on the corporation. That is likely to be something that cannot be determined with a great deal of precision, and a policy decision could be made not to try to make any such determination, impose the liability on the corporation, and not worry whether the persons who bear the burden received any benefit from the wrongdoing and the extent to which they, as innocent persons, are required to pay for someone else's wrongdoing that someone else received a benefit from, and thereby inflict a loss on those persons. Alternatively, an effort could be made to try to be cognizant of this possible result and to try to mitigate it.
Plaintiffs lawyers don't want to hear anything about the foregoing, because it can reduce litigation and reduce payments.
When a corporation engages in wrongdoing, the wrongdoing is conceived and implemented by some of the employees. Other employees are completely innocent of any wrongdoing by the corporation, and stockholders and customers are likely to be innocent of the wrongdoing.
If a cost or liability is imposed on a corporation, little of the cost is likely to be borne by the employees who conceived of and carried out the wrongdoing, and most of the cost is likely to be borne by innocent employees, shareholders and customers.
To the extent the corporation received a benefit from the wrongdoing, and the benefit accrued to innocent employees, shareholders or customers, it is not objectionable if those innocent parties are held liable for returning the benefit that was wrongly obtained by the corporation.
At the same time, it needs to be kept in mind that the deterrent aspect of making wrongdoers pay is not being fulfilled by obtaining return from innocent employees, shareholders or customers, because those persons did not wrong themselves.
This analysis of corporations leads to a couple of conclusions about what is or is not just under the law.
First it raises the question of the legitimacy or imposing financial penalties on corporations that are borne mainly by innocent persons for the purpose of deterring wrongdoing, as opposed to penalizing and punishing the employees who designed and carried out the wrongdoing. This is not to say that a corporation should never be subject to financial penalties and punishment, but, at a minimum, that is something that should be approached with circumspection and is ultimately worthy of addressing by the legislature to make policy decisions.
Similarly, there should be sensitivity by the law that there may be a great lack of correlation between, on the one hand, what benefit was received by a wrongdoing corporation, and to whom the benefit accrued, and, on the other hand, who is bearing the cost if a liability is imposed on the corporation. That is likely to be something that cannot be determined with a great deal of precision, and a policy decision could be made not to try to make any such determination, impose the liability on the corporation, and not worry whether the persons who bear the burden received any benefit from the wrongdoing and the extent to which they, as innocent persons, are required to pay for someone else's wrongdoing that someone else received a benefit from, and thereby inflict a loss on those persons. Alternatively, an effort could be made to try to be cognizant of this possible result and to try to mitigate it.
Plaintiffs lawyers don't want to hear anything about the foregoing, because it can reduce litigation and reduce payments.
Compensation because of wrongdoing
When a party is allegedly harmed by the wrongdoing of another party, the courts are the proper domain for determinations to be made about compensation to be paid by the second party to the first party. If courts are focused on questions of wrongdoing, who is the wrongdoer, what are the damages, and how much should the wrongdoer pay to the other party, the courts are not likely to engage in worrisome supplantation of the legislature in formulating public policy and exercising the other legislative powers of taxation, spending, regulating and imposing costs of regulation, defining crimes and setting levels of punishment and fines for noncompliance with the criminal law or other regulations.
If courts lose their focus on wrongdoing, the opportunity arises for expansive supplantation of the legislative branch.
This has occurred and is increasingly occurring.
The doctrine of strict liability is a good starting point. Under strict liability, an activity or product may be considered inherently very dangerous, and the party engaging in the activity or making the product may be held liability for any injury that happens. In this situation, there is a manifestation and implementation of some public policy. The activity or product is not illegal, which represents a public policy determination that it has social utility and it should not be prohibited. Further, the court implements a policy decision that the cost of injuries that occur, which do not occur through any "wrongdoing," should be paid for by the party engaging in the dangerous activity or manufacturing the product.
Such policy may or may not be good policy. There can be pros and cons regarding the policy. The legislature could believe that the cons outweigh the pros and disagree with the policy. If the legislature disagrees with the strict liability rule, I contend that the legislature has the power to change the strict liability rule as it determines best. For example, if the courts held that cars were inherently dangerous, and that manufacturers were liable for all injuries from car accidents, I think the legislature, if it disagrees, properly has the power to pass a law saying strict liability shall not apply in the case of cars.
If the courts implement a policy regarding compensation where there is no wrongdoing, and the legislature agrees with the policy, the legislature need take no action, and the court implemented policy will stay in place as the public policy.
A fair observation could be, however, that the courts have run hogwild in adopting and implementing policy that imposes liability and supplants the legislature where there is no wrongdoing. I will have more to say about this later.
The plaintiffs lawyers, as usual, do not want to hear anything about this, because it could reduce litigation and payments in litigation.
If courts lose their focus on wrongdoing, the opportunity arises for expansive supplantation of the legislative branch.
This has occurred and is increasingly occurring.
The doctrine of strict liability is a good starting point. Under strict liability, an activity or product may be considered inherently very dangerous, and the party engaging in the activity or making the product may be held liability for any injury that happens. In this situation, there is a manifestation and implementation of some public policy. The activity or product is not illegal, which represents a public policy determination that it has social utility and it should not be prohibited. Further, the court implements a policy decision that the cost of injuries that occur, which do not occur through any "wrongdoing," should be paid for by the party engaging in the dangerous activity or manufacturing the product.
Such policy may or may not be good policy. There can be pros and cons regarding the policy. The legislature could believe that the cons outweigh the pros and disagree with the policy. If the legislature disagrees with the strict liability rule, I contend that the legislature has the power to change the strict liability rule as it determines best. For example, if the courts held that cars were inherently dangerous, and that manufacturers were liable for all injuries from car accidents, I think the legislature, if it disagrees, properly has the power to pass a law saying strict liability shall not apply in the case of cars.
If the courts implement a policy regarding compensation where there is no wrongdoing, and the legislature agrees with the policy, the legislature need take no action, and the court implemented policy will stay in place as the public policy.
A fair observation could be, however, that the courts have run hogwild in adopting and implementing policy that imposes liability and supplants the legislature where there is no wrongdoing. I will have more to say about this later.
The plaintiffs lawyers, as usual, do not want to hear anything about this, because it could reduce litigation and payments in litigation.
Wednesday, November 7, 2007
Legislative and judicial branches
The evaluation of the civil liability system as one of several mechanisms that society utilizes to accomplish the two purposes of loss compensation and behavior regulation calls for consideration of the roles of the legislative and judicial branches of government.
It is the domain of the democratically elected legislative branch to decide matters of public policy and enact laws that implement the policy decisions that are made. The legislative branch has the power to levy taxes and to decide who pays what taxes and how much. The legislature has the power to decide how tax moneys will be spent and who will receive benefits from the expenditure of tax moneys. It has the power to regulate commercial activity, such regulation entails costs in order for the regulated parties to comply, and the legislature has the power to provide who will pay those costs and how, and this can entail express shifting under the law of costs among members of society. Where costs ostensibly fall more directly on one party, the legislature may specify that a second party shall pay the costs. This is not because the party to whom the cost is shifted is "blameworthy," anymore than persons on whom taxes are levied are "blameworthy;" rather both are expressions of general policy decisions about the economy and society and about who should bear what costs and who should get what benefits.
The legislature also has the power to enact criminal laws and provide for jail sentences and fines to punish those who violate the criminal laws. As part of its power to regulate commercial and other social activity, the legislature has the power to establish regulatory apparatus to promulgate regulations and oversee compliance with the regulations, including by imposing fines and other punishments.
The foregoing powers of the legislature broadly affect all the society's members, and it is deemed of critical political importance to the society that these powers be exercised by the democratically elected legislature that is responsive to the wishes of the voters.
In the exercise of its legislative function, rarely or ever does the legislature make or attempt to make an innocent party pay for the intentional or negligent wrongdoing of another party. That would be contrary to the purpose of trying to regulate behavior to lessen the harms that members of society inflict on one another. In this regard, it is fair to say there is a recognition that the judicial branch is a very proper domain for there to be effectuated payments to a harmed party by a party who has intentionally or negligently harmed the first party.
The role of the judicial branch is to resolve disputes about the meaning and application of the law where parties are disputing the same. The interpretation that a court gives to a law will have effect for other parties who have circumstances to which the law is relevant, other courts may agree or not agree with the interpretation, and the legislature has the ultimate power to change the law if it does not like the interpretation that has been given by the judiciary.
This dispute resolution in the courts may have much broader collateral consequences for society's members who are not parties to the specific dispute. It can effectively substitute the judiciary for the legislature in terms of deciding and implementing matters of public policy, imposing the equivalent of a regulatory regimen, imposing significant costs on society's members, determining who pays the costs for other parties to benefit, and deciding standards of conduct that is enforced by the imposition of financial penalities in order to obtain compliance.
While some collateral effect is inevitable from judicial resolution of disputes between parties is unavoidable, there can be legitimate concern and inquiry if and when litigation in the courts is resulting in significant supplantation of the legislature by the judiciary in the above described ways. This is because, under separation of powers, policy making and the other described legislative powers are supposed to be in the hands of democratically elected legislatures who are directly accountable to and responsive to the voters, and not in the hands of judges.
Plaintiffs lawyers like the judiciary to implement mattters of policy and to exercise the other described legilative powers, because that can be translated into big payments in litigation, and plaintiffs' lawyers don't want to hear anything about the possibility of the judiciary overstepping its bounds, because that could reduce litigation and payments.
It is the domain of the democratically elected legislative branch to decide matters of public policy and enact laws that implement the policy decisions that are made. The legislative branch has the power to levy taxes and to decide who pays what taxes and how much. The legislature has the power to decide how tax moneys will be spent and who will receive benefits from the expenditure of tax moneys. It has the power to regulate commercial activity, such regulation entails costs in order for the regulated parties to comply, and the legislature has the power to provide who will pay those costs and how, and this can entail express shifting under the law of costs among members of society. Where costs ostensibly fall more directly on one party, the legislature may specify that a second party shall pay the costs. This is not because the party to whom the cost is shifted is "blameworthy," anymore than persons on whom taxes are levied are "blameworthy;" rather both are expressions of general policy decisions about the economy and society and about who should bear what costs and who should get what benefits.
The legislature also has the power to enact criminal laws and provide for jail sentences and fines to punish those who violate the criminal laws. As part of its power to regulate commercial and other social activity, the legislature has the power to establish regulatory apparatus to promulgate regulations and oversee compliance with the regulations, including by imposing fines and other punishments.
The foregoing powers of the legislature broadly affect all the society's members, and it is deemed of critical political importance to the society that these powers be exercised by the democratically elected legislature that is responsive to the wishes of the voters.
In the exercise of its legislative function, rarely or ever does the legislature make or attempt to make an innocent party pay for the intentional or negligent wrongdoing of another party. That would be contrary to the purpose of trying to regulate behavior to lessen the harms that members of society inflict on one another. In this regard, it is fair to say there is a recognition that the judicial branch is a very proper domain for there to be effectuated payments to a harmed party by a party who has intentionally or negligently harmed the first party.
The role of the judicial branch is to resolve disputes about the meaning and application of the law where parties are disputing the same. The interpretation that a court gives to a law will have effect for other parties who have circumstances to which the law is relevant, other courts may agree or not agree with the interpretation, and the legislature has the ultimate power to change the law if it does not like the interpretation that has been given by the judiciary.
This dispute resolution in the courts may have much broader collateral consequences for society's members who are not parties to the specific dispute. It can effectively substitute the judiciary for the legislature in terms of deciding and implementing matters of public policy, imposing the equivalent of a regulatory regimen, imposing significant costs on society's members, determining who pays the costs for other parties to benefit, and deciding standards of conduct that is enforced by the imposition of financial penalities in order to obtain compliance.
While some collateral effect is inevitable from judicial resolution of disputes between parties is unavoidable, there can be legitimate concern and inquiry if and when litigation in the courts is resulting in significant supplantation of the legislature by the judiciary in the above described ways. This is because, under separation of powers, policy making and the other described legislative powers are supposed to be in the hands of democratically elected legislatures who are directly accountable to and responsive to the voters, and not in the hands of judges.
Plaintiffs lawyers like the judiciary to implement mattters of policy and to exercise the other described legilative powers, because that can be translated into big payments in litigation, and plaintiffs' lawyers don't want to hear anything about the possibility of the judiciary overstepping its bounds, because that could reduce litigation and payments.
Which mechanisms are best
With multiple mechanisms available to society for providing payments to its members in cases where they experience loss or damage, and multiple mechanisms for trying to regulate behavior to try to lessen damage or harm that members of society cause to one another, society is confronted with deciding which mechanisms or mix of mechanisms are best for trying to achieve those objectives.
Plaintiffs lawyers do not want to engage in any consideration of what the mechanisms are that society has and what will best achieve society's objectives, because the answer may come out unfavorable to them in reducing their litigation and reducing the amounts of payments made in litigation or through settlement.
I contend that an extremely important element of deciding which mechanisms are best for providing compensatory payments to members of society who experience loss or harm is whether one party has intentionally or negligently caused another party harm or damage. If there is intentional or negligent wrongdoing, there is a correspondence between making the party who intentionally or negligently caused harm to another to pay for the loss or damage and the deterrent effect under society's regulatory purpose in order to deter people from acting in a way that intentionally or negligently harms others.
To the extent there a harm or damage but there is not intentional or negligent wrongdoing, there is only a shifting of the burden of the loss between innocent parties, and the objective of regulating behavior is not served. I contend this makes is less appropriate for the civil liability system to be the mechanism by which a compensatory payment is made to the party who has experienced the loss.
Plaintiffs' lawyers don't want any hedging of the civil liability system by reference to the presence of intentional or negligent wrongdoing, because that may reduce the amount of litigation and payments pursuant to the civil liability system.
Plaintiffs lawyers do not want to engage in any consideration of what the mechanisms are that society has and what will best achieve society's objectives, because the answer may come out unfavorable to them in reducing their litigation and reducing the amounts of payments made in litigation or through settlement.
I contend that an extremely important element of deciding which mechanisms are best for providing compensatory payments to members of society who experience loss or harm is whether one party has intentionally or negligently caused another party harm or damage. If there is intentional or negligent wrongdoing, there is a correspondence between making the party who intentionally or negligently caused harm to another to pay for the loss or damage and the deterrent effect under society's regulatory purpose in order to deter people from acting in a way that intentionally or negligently harms others.
To the extent there a harm or damage but there is not intentional or negligent wrongdoing, there is only a shifting of the burden of the loss between innocent parties, and the objective of regulating behavior is not served. I contend this makes is less appropriate for the civil liability system to be the mechanism by which a compensatory payment is made to the party who has experienced the loss.
Plaintiffs' lawyers don't want any hedging of the civil liability system by reference to the presence of intentional or negligent wrongdoing, because that may reduce the amount of litigation and payments pursuant to the civil liability system.
Society's other behavior regulating mechanisms
In addition to the civil liability system for trying to regulate behavior to lessen harms or damages that society's members may cause to one another, society additionally has its criminal law system and its governmental regulatory system, that mete out penalties such as jail sentences and fines to punish wrongdoers and try to deter citizens from doing things that cause damage to other members of society.
Society's other loss compensation mechanisms
The civil liability system for providing compensatory payments to persons who suffer loss or harm is one of several mechanisms that are used in the society to provide protection from losses that societal members experience in their lives.
Other mechanisms include private insurance arrangements, governmental welfare programs and disaster relief, and charitable organizations. None of these are "free lunches" any more than payments made under the civil liability system are free lunches. All payments come out of somebody's pocket. In the case of private insurance, the payments are funded from insurance premiums that people pay to have the insurance. Governmental welfare and disaster relief programs are funded from taxpayer dollars. Benefits provided by charitable organizations come from charitable donations that people make. In each case, this means oversight and monitoring in one form or another of the funds that are the source of payments, consideration of alternative uses of the funds, and decisionmaking in various forms that weighs the choices, costs and benefits.
In the civil liability system, there is equally room for cognizance that no payments are free, consideration that there are possible alternative uses of funds that are sources of payment in the civil liability system, and a weighing of choices, costs and benefits.
Plaintiffs lawyers want none of that, because they want more and bigger payments in their litigation, and considerations of alternative uses of funds, costs, benefits, etc., may result in smaller or fewer payments in litigation.
Other mechanisms include private insurance arrangements, governmental welfare programs and disaster relief, and charitable organizations. None of these are "free lunches" any more than payments made under the civil liability system are free lunches. All payments come out of somebody's pocket. In the case of private insurance, the payments are funded from insurance premiums that people pay to have the insurance. Governmental welfare and disaster relief programs are funded from taxpayer dollars. Benefits provided by charitable organizations come from charitable donations that people make. In each case, this means oversight and monitoring in one form or another of the funds that are the source of payments, consideration of alternative uses of the funds, and decisionmaking in various forms that weighs the choices, costs and benefits.
In the civil liability system, there is equally room for cognizance that no payments are free, consideration that there are possible alternative uses of funds that are sources of payment in the civil liability system, and a weighing of choices, costs and benefits.
Plaintiffs lawyers want none of that, because they want more and bigger payments in their litigation, and considerations of alternative uses of funds, costs, benefits, etc., may result in smaller or fewer payments in litigation.
Two societal purposes
The civil liability system serves two main societal purposes.
One purpose is to provide a mechanism for compensating society's members when they suffer physical or financial damages.
The second (and related) purpose is as a mechanism for regulating the activities of members of society to lessen harms they do to one another and to achieve a deterrent effect by punishing those whose deliberate or negligent actions cause damage to others.
In the tort reform debate, it seems important to keep in mind that the civil liability system is not the only mechanism society employs for serving these two purposes, and any evaluation of the civil liability system ought to take cognizance of the other mechanisms that society employs in these areas as well, to consider the totality of the situation, to evaluate the merits, costs and other advantages or disadvantages of all the various mechanisms, and to try to determine how best to accomplish the two purposes in question.
For a fuller discussion, see M. My writings.
One purpose is to provide a mechanism for compensating society's members when they suffer physical or financial damages.
The second (and related) purpose is as a mechanism for regulating the activities of members of society to lessen harms they do to one another and to achieve a deterrent effect by punishing those whose deliberate or negligent actions cause damage to others.
In the tort reform debate, it seems important to keep in mind that the civil liability system is not the only mechanism society employs for serving these two purposes, and any evaluation of the civil liability system ought to take cognizance of the other mechanisms that society employs in these areas as well, to consider the totality of the situation, to evaluate the merits, costs and other advantages or disadvantages of all the various mechanisms, and to try to determine how best to accomplish the two purposes in question.
For a fuller discussion, see M. My writings.
Society's balanced interests
Once it is recognized and accepted that there is no "free lunch" and all litigation and settlement payments ulitmately come out of the pockets of individuals, society's balanced interests can be properly focused on. One the one side, each member of society can be an injured party who desires rights to sue a wrongdoer who has caused his injury. On the other hand, since all payments ultimately come out of the pockets of individuals, frequently in the form of small amounts coming out of the pockets of many individuals, there is a societal interest that such situation not be exploited and abused, and that there needs to be oversight to try to prevent that.
Society thus has legitimate intersts on both sides of the "tort reform" question, and proper balancing of those interests is called for.
Plaintiffs' lawyers have no such balanced interests, and their interest is solely on the side of more litigation rather than less, and more and bigger payments through litigation and settlements rather than less.
In the debate that goes on, it is important to keep in mind that society has legitimate interests on both sides of the debate, plaintiffs' lawyers have an interest only on one side, and all plaintiffs' lawyers positions are deserving of skepticism and close scrutiny about whether such positions represent proper balancing of the societal interests on both sides of the debate or whether they represent merely trying to advance the one sided plaintiffs' lawyers interests.
Plaintiffs' lawyers have tried to frame the debate as being them on behalf of the "little guy" against "big business" or against "rich greedy doctors." This is an excellent example of their bias at work. In trying to frame the debate the way they do, the lawyers try to obscure that all payments ultimately come out of pockets of individuals and to obscure whose pockets payments are coming out of. It is true that payments in litigation may come out of the pockets of doctors and Presidents of corporations, but they also come out of pockets of patients (through increased medical charges and insurance premiums), customers (through higher prices), lower level employees (through reduced wages), and retired persons (through reduction in values of retirement plans). Plaintiffs' lawyers will avoid getting into any discussion or analyis of that when they try to frame the debate as being them on behalf of the "litttle guy" and, in so doing, they reveal their bias that disables them from engaging in a balancing of societal interests and reaching positions that advance society's best interests as opposed to their own one sided interest.
Society thus has legitimate intersts on both sides of the "tort reform" question, and proper balancing of those interests is called for.
Plaintiffs' lawyers have no such balanced interests, and their interest is solely on the side of more litigation rather than less, and more and bigger payments through litigation and settlements rather than less.
In the debate that goes on, it is important to keep in mind that society has legitimate interests on both sides of the debate, plaintiffs' lawyers have an interest only on one side, and all plaintiffs' lawyers positions are deserving of skepticism and close scrutiny about whether such positions represent proper balancing of the societal interests on both sides of the debate or whether they represent merely trying to advance the one sided plaintiffs' lawyers interests.
Plaintiffs' lawyers have tried to frame the debate as being them on behalf of the "little guy" against "big business" or against "rich greedy doctors." This is an excellent example of their bias at work. In trying to frame the debate the way they do, the lawyers try to obscure that all payments ultimately come out of pockets of individuals and to obscure whose pockets payments are coming out of. It is true that payments in litigation may come out of the pockets of doctors and Presidents of corporations, but they also come out of pockets of patients (through increased medical charges and insurance premiums), customers (through higher prices), lower level employees (through reduced wages), and retired persons (through reduction in values of retirement plans). Plaintiffs' lawyers will avoid getting into any discussion or analyis of that when they try to frame the debate as being them on behalf of the "litttle guy" and, in so doing, they reveal their bias that disables them from engaging in a balancing of societal interests and reaching positions that advance society's best interests as opposed to their own one sided interest.
Saturday, November 3, 2007
There is no free lunch
I contend that no payments are "free," and the cost of all payments growing out of litigation ultimately come out of the pockets of individuals. Individuals bear these costs in the various forms that include private insurance premiums, taxes paid to the government, gifts made to charities, higher prices for goods, lower wages for employees, and reduced profits and investment values for corporate stockholders and owners(be they individuals, public or private pension plans, charitable organizations, etc.).
The amount of any payment that is made in litigation or a settlement that is borne by any one individual may be miniscule or possibly not even discernible by the individual, but the amounts are real and, however small they are for each individual separately, all the small amounts added up for many, many individuals come up to a significant total amount that gets paid.
Plaintiffs lawyers want to obscure the foregoing and like to get a jury to act with disregard that ultimately their jury verdicts are coming out the pockets of individuals such as themselves.
There is a signicant factor that no single individual may much care or bother to complain about whatever miniscule amount is coming out of his pocket. If that is so, that is part of the phenomenon I alluded to previously in few stakeholders with big interests versus many stakeholders with small interests
There are numerous areas in society and the economy where small amounts come out of the pockets of many individuals in order to lump them together to create a large source of funds. Taxes could be viewed as one of these realms. It is beneficial for members of a society to be cognizant of situations where this happens and to exercise oversight about the matter in order to protect against abuse and exploitation that tries to take advantage of small motivation of any single individual to complain about a small amount being taken from him.
Taxpayers, through the democratic process, should and do exercise oversight over the levying of taxes.
I contend similar concerns are applicable to the current state of a great deal of litigation that goes on in the United States.
The amount of any payment that is made in litigation or a settlement that is borne by any one individual may be miniscule or possibly not even discernible by the individual, but the amounts are real and, however small they are for each individual separately, all the small amounts added up for many, many individuals come up to a significant total amount that gets paid.
Plaintiffs lawyers want to obscure the foregoing and like to get a jury to act with disregard that ultimately their jury verdicts are coming out the pockets of individuals such as themselves.
There is a signicant factor that no single individual may much care or bother to complain about whatever miniscule amount is coming out of his pocket. If that is so, that is part of the phenomenon I alluded to previously in few stakeholders with big interests versus many stakeholders with small interests
There are numerous areas in society and the economy where small amounts come out of the pockets of many individuals in order to lump them together to create a large source of funds. Taxes could be viewed as one of these realms. It is beneficial for members of a society to be cognizant of situations where this happens and to exercise oversight about the matter in order to protect against abuse and exploitation that tries to take advantage of small motivation of any single individual to complain about a small amount being taken from him.
Taxpayers, through the democratic process, should and do exercise oversight over the levying of taxes.
I contend similar concerns are applicable to the current state of a great deal of litigation that goes on in the United States.
Outline of arguments
I discern a number of points of argumentation on this subject that I think would be good to break out in discrete posts and indicate both my anti-plaintiffs' lawyers view and where I think the plaintiffs' lawyers stand.
Stated from my perspective, these loosely include:
1. There is no free lunch and all payments ultimately come out of the pockets of human individuals.
2. The law needs to differentiate among intentional wrongdoing, negligence and innocent conduct that is neither wrongful nor negligent.
3. It is the role of democratically elected legislatures to decide matters of public policy and to enact laws of general application that implement or reflect the policy decisions. It is the role of the courts to apply those laws to resolve particular disputes between particular parties.
4. Plaintiffs' lawyers have a one sided financial interest and bias; individual citizens have interests on both sides of the debate.
Stated from my perspective, these loosely include:
1. There is no free lunch and all payments ultimately come out of the pockets of human individuals.
2. The law needs to differentiate among intentional wrongdoing, negligence and innocent conduct that is neither wrongful nor negligent.
3. It is the role of democratically elected legislatures to decide matters of public policy and to enact laws of general application that implement or reflect the policy decisions. It is the role of the courts to apply those laws to resolve particular disputes between particular parties.
4. Plaintiffs' lawyers have a one sided financial interest and bias; individual citizens have interests on both sides of the debate.
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