The Courts and the Second Amendment

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In 2008, the Supreme Court started a new era of second amendment jurisprudence.

This is no exaggeration. When the Heller opinion was published (District of Columbia v. Heller, 554 U.S. 570 [2008]), I was surprised to learn that the Court had never decided whether the Second Amendment gave individuals (as opposed to collectives, such as militias) any right to keep or carry firearms. That had been an open question. So, Heller was a big deal, and the justices knew it. The case opened a can of worms — hundreds of plaintiffs would try to wriggle out of states’ prohibitions on the possession and carrying of guns. However, the case said very little about the extent of the right or how it could be limited by law.

In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban.

How could a legal opinion say so much and so little at the same time? It was the factual context of the decision that made this possible. When I was in law school I heard the maxim “hard cases make bad law,” meaning that cases of extraordinarily sympathetic circumstances (think widows and orphans) might motivate a lawmaker or judge to create a rule that had bad unintended consequences when applied generally. I think that the majority in Heller saw the case as sort of the opposite: an easy case to make good law. The plaintiff was challenging the laws of the District of Columbia. In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban. Private ownership of handguns was banned. Rifles and shotguns might be kept at home but locked or disassembled, in other words, not useful in an emergency.

Finding an individual right in the Second Amendment was a big step. But if you wanted to make that big step as small as possible, the facts behind Heller were just about perfect.

What Heller said was that the Second Amendment gave the plaintiff some kind of individual, civil right, and that right was enough to invalidate D.C.’s heavy restrictions. It was a very limited application of an individual right. Even so, the opinion, a 5–4 split of the Court, drew sharp criticism from the dissenting minority and also from some very good scholars, including Richard Posner, generally thought to be a conservative from the “law & economics” school of jurisprudence. Critics accused the conservative majority of being unprincipled by practicing judicial activism instead of the restraint they often championed.

How far do the rights established in Heller go? What other restrictions on guns might be unconstitutional? Nobody knows. The individual right may be very modestly interpreted. Maybe every other gun law in the country is still constitutionally permitted.

Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more.

The lower courts and the circuit courts of appeal have had to deal with Heller many, many times. The appeal of California’s Peruta case (Peruta v. County of San Diego, 824 F.3d 919 [9th Cir. 2016] [en banc]) gave the Supreme Court an interesting opportunity to apply Heller. In Peruta, the Ninth Circuit said that the Constitution does not give individuals any right to carry concealed firearms. In California, concealed carry requires a license, granted only for “good cause.” Licenses are rarely and, the plaintiffs would say, arbitrarily granted. Also, open carry is generally banned, by California Assembly Bill No. 144. The Ninth Circuit explicitly declined to say whether banning open carry was constitutional. Therefore, Peruta presents a nice little web of questions. Can all public carry be banned? Maybe. Heller was about keeping guns at home. But its principles seem to go much farther, once this is determined to be an individual right: “the right of the people to keep and bear Arms, shall not be infringed.” Can concealed carry be banned when open carry is permitted? Can open carry be banned when concealed carry is permitted? Can open carry be banned while concealed carry is extremely limited (the current law in California)?

We know that the Supreme Court does not want to answer any of these questions right now, because on June 26 it declined to hear the appeal. That means fewer than four justices voted to take the case. It does not mean they agree with the Ninth Circuit or that they disagree.

I guess that, if forced to decide, the Court would find something wrong with California’s restrictions. Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more. For now, outside of a few states like California, the political battle for gun rights is way ahead of the courts. All but about 15 states have either “shall issue” licensing or no license requirement at all for the concealed carry of handguns.




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Unintentional Truth

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“The plaintiffs in the Trump University case, filed in 2010, accuse him and the now-defunct school of defrauding people who paid as much as $35,000 for real estate advice. Mr. Trump said Friday that Trump University received ‘mostly unbelievable reviews’ from its 10,000 students.” — “Judge Unseals Trump University Documents,” Wall Street Journal online, May 31, 2016.

Trump’s statement may well be true.




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You CAN Take It with You

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In DC after the Heller decision, you could keep, but could you bear?

I recently wrote about Peruta, a California Second Amendment case originating in San Diego County and decided in February. That federal appeals court decision surprised a lot of people, because it was the Ninth Circuit saying that California’s gun laws were unconstitutionally illiberal, and it seemed to go beyond Heller, the Supreme Court decision on which it heavily relied.

Heller was a District of Columbia case that was appealed to the Supreme Court. It said that the Second Amendment right to bear arms was an individual right, not only a collective right (for militia), but its holding was limited to DC’s laws against keeping handguns at home. It did not directly address prohibitions on carrying guns in public.

Once the Supreme Court finally said that the Second Amendment granted an individual right, that right could not be kept indoors.

But the Ninth Circuit said in the Peruta decision that Heller implies “a law-abiding citizen’s ability to carry a gun outside the home for self-defense fell within the Second Amendment right to keep and bear arms for the purpose of self-defense.” In other words, the reasoning of the Heller case goes beyond the actual holding of the case, beyond possession of guns at home.

If we forget about the anti-gun culture that predominates in most big American cities and about the decades of anti-gun legislation that we have gotten used to, it’s hard to disagree with Peruta. Once the Supreme Court finally said that the Second Amendment granted an individual right, that right could not be kept indoors. In the Constitution, there is simply no mention of any limitation of gun rights to the home. “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” In fact, “keeping” might be something you do only at home, but “bearing” sounds like something you do in public.

A federal trial court in DC has just agreed, in the case of Palmer v.District of Columbia.(554 U.S. 570 [2008]). The decisionfollows the California casein applying Heller to a question almost identical to the one posed in Peruta.

A pattern has emerged. Civil libertarians (with glee) and gun-control advocates (with dread) might agree that the slope is slippery. Before Heller, DC’s laws were less liberal than California’s. DC “totally ban[ned] handgun possession in the home” and “require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock” (Heller, 554 U.S. at 603, 628). That is, no handguns at home in any condition, and other guns such as rifles or shotguns stored in pieces or with a trigger lock. You couldn’t get much closer to a total gun ban. I think that’s what forced the hand of the Supreme Court in the Peruta case. It had to decide whether the Second Amendment meant anything for individuals. Once it did that, and overturned DC’s handgun ban, San Diego’s effective ban on carrying guns openly or concealed seemed the most offensive to Second Amendment rights. The Ninth Circuit had to apply Heller, or at least the logic of Heller. Then the district court in DC followed with its decision in Palmer.

Seven years ago in DC you couldn’t keep a handgun at home. Now, if Palmer holds up, you can take it with you.




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Drowned in the Jury Pool

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The other day I reported for jury duty. In California, you report for one day, and if you aren’t lucky enough to get on a jury, you’re out for at least the next year. I’ve gone through this four or five times now, and only once did I land on a jury. That jury was hung, partly because the august legal minds empaneled a woman who claimed that her profession was teaching the principles of jury selection to students in a junior college. She proved to be, as almost anyone would have anticipated, an enormous pain in the ass.

This year, I waited in the “jury lounge” for several hours, not even pretending to watch a propaganda film about how wonderful it is to serve on a jury. I puzzled over the wording of my next book, chatted with a couple of people who, like me, wished devoutly not to get on a jury, celebrated the fact that it was 11:45 and no calls for jurors had been made — and then it happened. My name was announced as one of the 40 people who had to assemble in Superior Court, Section Such and Such, to be examined by the judge and attorneys to determine whether we were fit to decide whether someone should go to jail for burglary and such and such and so and so, and possession of methamphetamine.

The way they do this is to get all 40 victims into the courtroom, and then particularly examine the first 21, to see whether some of them should be replaced by some of the other 19. Why 21, I don’t know. I was randomly assigned a position as Prospective Juror No. 9.

Once we jurors had been properly infantilized, we were taken into the courtroom, seated in our places, and asked a series of questions by the judge.

My cohort’s progress into the jury room was impeded by a court official who spent 25 minutes checking off the list of 40 randomly generated names. He made jokes about his age, and his eyeglasses, and his difficulty reading the list, and our names, and his mispronunciation of our names, as if it mattered how he pronounced anything. He may have been wasting time because the judge wasn’t ready to invite us in. So if the dentist is late, does he have one of his assistants come out to the waiting room and start drilling your teeth?

Once we jurors had been properly infantilized, we were taken into the courtroom, seated in our places, and asked a series of questions by the judge. She turned out to be very sensible. She explained what she was doing with great succinctness, asked her questions clearly, and found ways to limit our answers to what was relevant. She was a welcome relief from my last judge, who when confronted by an elderly man who announced with pride that he had been a member of more than 30 juries and had always enjoyed himself, invited the aged idler to entertain us with stories from his service to American justice. The current judge wasn’t like that. After her round of examination, she gave the prosecuting attorney and the defense attorney just 15 minutes each to ask their own questions. I quickly grew to like her.

But what I’ll always remember is the responses of my fellow prospective jurors.

The man who answered the judge’s question, “Would you believe that the defendant is guilty just because he’s sitting at the defendant’s table?” by saying, “Yes. I mean, why else would he be the defendant?” Body language suggested that he wasn’t just trying to get off the jury. He was being honest.

The woman who, thoughtfully and repeatedly, said that she could not serve on a jury because her religious beliefs did not allow her to judge her fellow men. When I spoke with her at the end of the day, she proved to be a Christadelphian, a member of a sect that I had studied but of which I had never met a single member. This was a big deal for me. She was a nice person and probably the most intelligent person I met all day.

She tried to argue me into it. Surely I could vote on a question of fact?

The woman who, when asked whether she or any member of her family had been a victim of crime, revealed that her mother’s car had once been stolen, “and she never got it back!” She started crying hysterically and was told to go home.

The woman who, almost as hysterically, answered several questions by saying that she wouldn’t have a bias about someone accused of drug possession, but if she thought he committed a crime because he was “addicted,” she could never forgive him, “never! never!

The woman who said she had friends who were going to law school, and they told her that “there were things going on behind the scenes,” evidently “things” in the legal system, and therefore . . . something. The judge tried to get her to say what the “things” were, tried to joke with her about how law students sometimes make remarks that don’t mean very much, tried to get her to put some definition to anything she said. But her efforts were futile. She gave up.

The man who answered every question about things that might affect his judgment with some story about his “partner,” his “current partner,” or his “partner in the 1980s,” and who was concerned that his “partner in the 1980s” had a relative who was a “correctional officer.” “Do you know that person?” the judge asked. “No . . . I never met him.”

The woman who answered the question about whether police officers ever lie with an adamant declaration that no, they never do. Never? the judge asked. No, never. The judge’s eyes widened; she was obviously repressing the desire to say something like “What kind of an idiot are you?” Members of the jury pool had less luck repressing their laughter. The judge kept questioning the woman, trying to get her to say whether there was any possibility that any police officer might ever say anything except the truth. Finally the woman conceded that if you got together enough thousands and millions of police officers, one of them might possibly, on some occasion, probably in private, deviate very slightly and unintentionally from the exact truth.

The several people who plainly did not speak English with any facility but who were emphatic in correcting the judge about her pronunciation of their names.

The several people who, refreshingly, laughed off all mispronunciations.

The man who, very, very seriously, reviewed the long and irrelevant history of his employment.

The woman who, very enthusiastically, responded to every question with an account of the social work that she and her husband perform.

The many people who recounted friends’ and relatives’ run-ins with the law, almost always incidents about driving while under the influence (not injuring anyone, mind you) or using recreational drugs, then shrugged and said, “No, the punishment was fair; he brought it on himself.”

If you’ve been adding up this list, you can see that there were a lot of people in that first cut of 21 who may not have belonged on a jury.

What about me? I didn’t belong either. At the appropriate moment, I advised the judge that I thought it was immoral to convict anyone on a drug charge. She read a statement about juries not deciding the law for themselves, and I said that yes, I understood, but in the case of victimless crimes I was in favor of what the statement was trying to exclude, which was jury nullification. She smiled and said, “Yes, that’s what we’re talking about.”

The judge’s eyes widened; she was obviously repressing the desire to say something like “What kind of an idiot are you?”

The defense attorney of course wanted me to be empaneled, so she tried to argue me into it. Surely I could vote on a question of fact? Surely I could determine whether someone possessed methamphetamine? Surely that wouldn’t be convicting anyone? Surely only a judge can sentence anyone? I told her I could see where that train was going, and I wouldn’t get on it. The prosecuting attorney smiled and joked with me, suggesting that I was arrogant enough to think I knew better than everyone else. Maybe he was right, but I was wondering why he bothered. Maybe he was trying to discourage anyone else from acting like me in the jury room. By this point, ironically, I was getting interested in the process and mildly regretting that I wouldn’t get to serve.

After a couple hours of jury examination, punctuated by a short break that turned into a longer break, the judge called the attorneys into her chambers. A few minutes later they came back, and she announced that five people were excused: me, the young Mexican American who sat next to me, the Christadelphian lady, and two others whom I couldn’t connect with the answers they’d given. The Mexican American was a working class kid who had started responding to questions about drug convictions with answers like, “I don’t know. . . I could follow the law. But with recreational drugs . . . I dunno . . . It doesn’t seem right. . . . Well, yeah, I guess so.” After listening to the back and forth about me, he reached a more definite position. He said he would not vote to convict anyone for drug possession. I didn’t talk to him during the breaks, or at any other time; but maybe I was responsible for his values clarification.

And so it ended. I walked out of the courthouse, chatting with the Christadelphian lady, then proceeded to the eight-dollar-a-day parking lot, having experienced the American jury system in what may be nearly its finest hour.




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The Cruelty of the ASPCA

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A recent report concerning the American Society for the Prevention of Cruelty to Animals (ASPCA) was simply too delicious not to comment on.

The ASPCA has a very nice sounding name, no? I mean, who is for cruelty to animals? Or even people. I certainly am not. But it should concern everyone that like so many other NGOs (nongovernmental nonprofit organizations, ostensibly devoted to the public good), it masks its agenda behind its euphemistic name.

In the case of the ASPCA, the agenda is one of a strident animal rights advocacy.

One of the projects that the ASPCA (along with fellow animal-rights groups such as the Humane Society, the Fund for Animals, the Animal Welfare Institute, and others) has pursued is ending the use of animals in circuses. Not content with, say, urging its supporters simply not to patronize circuses, the ASPCA (along with several of its NGO fellow-travelers) waged a “litigation war” against Feld Entertainment, owners of America’s biggest circus, long-famous Ringling Brothers and Barnum and Bailey. It found a disgruntled former Ringling Brothers employee, one Tom Rider, to use as a plaintiff in a case the ASPCA and its allies filed against the circus, alleging that the circus routinely abused the elephants omnipresent in the shows. (The allegedly aggrieved pachyderms were not plaintiffs in the suit.)

The circus, a family-owned enterprise, fought the case, and won in 2009. In the trial, it was revealed that Rider, the alleged witness to the alleged mistreatment of the animals (which allegedly caused him extreme emotional injury), never complained while he worked for the circus, had no proof to back up his assertions, and had been paid a whopping $190,000 by the ASPCA and its fellow-travelers — his sole source of support — during the period of litigation.

So Feld Entertainment sued the animal-rights groups that were tormenting it, for malicious prosecution, abuse of process, and violating the RICO statute.

Late last year the ASPCA caved like a box crushed by an elephant. It will pay Feld Entertainment a jumbo-sized award of $9.3 million to settle all claims.

Feld is still pursuing the Humane Society, the Fund for Animals, the Animal Welfare Institute, and the Animal Production Institute United with Born Free USA, along with the moneygrubbing plaintiff Tom Rider and the posse of lawyers. I hope Feld wins across the board.

As the CEO of Feld Entertainment proudly said, “These defendants attempted to destroy our family-owned business with a hired plaintiff who made statements that the court did not believe. Animal activists have been attacking our family, our company, and our employees for decades because they oppose animals in circuses. This settlement is a vindication not just for the company, but also for the dedicated men and women who spend their lives working and caring for all the animals . . .”

Indeed.

Leftist NGOs routinely use the same tactics to further the agenda: lure people into giving financial support with moderate-sounding names, then use the money to fund propaganda campaigns and endless legal harassment of people or organizations they oppose.

It’s nice to see them smacked back for a change. It would be good if the media paid one one-thousandth as much attention to refutations of charges in cases like this as they did to the charges themselves.




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The Hoot-Out at the OK Corral

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Say, what is it with these lousy mouse-munchers? Every time you turn around, the damned spotted owl is making people’s lives miserable, with the able assistance of the federal government.

A story out of Tombstone, Arizona, reports that the legendary town — erstwhile home of Doc Holliday and the Earp Brothers, and venue of the most famous gunfight in Western history, the OK Corral — is being destroyed by the US Forest Service. Yes, this storied burg that survived the guns of the outlaw Cowboy gang (Ike and Billy Clanton, Tom and Frank McLaury, and Billy Claiborne) is in danger of being throttled by the talons of the now legendary bird, backed by the now infamous Forest Service.

You see, last summer there was a fire in the nearby mountains, where the springs that provide water for the town are to be found. The fires burned away the ground cover, and recent rains have washed away part of the 26-mile pipeline that brings water into town. The pipeline has been there for over 130 years and needs to be repaired quickly, or the next round of rains will wash it away. Since Tombstone’s reservoir has run dry, this will pretty much kill the town.

Enter the owl. Forest Service rangers have discovered a nest of spotted owls — Mexican spotted owls, to be precise. Pero caramba! The species has been declared “endangered” (in the United States) so the Forest Service is trying to stop the town’s residents from using machinery to repair the pipeline.

Tombstone has gone to court, saying that since it owns the springs in question, it shouldn’t need the federal government’s permission to rebuild the pipeline. (The town is defended by the wonderful Goldwater Institute, and hundreds of ranchers, not to mention Western fans, throughout the West.) The feds respond that the town is just using this as an excuse to expand its water supply — a horrible sin, no doubt, for a desert town. Why exactly the construction equipment would harm the birds, which managed to survive the fires, is unclear — but then, almost everything the Forest Service does is unclear.

Its mindset is revealed by the answer one of its supervisors gave in court to the question, “What is more important, owls or the people of Tombstone?” The moral idiot replied that it is hard to say.

And so far the Forest Service is winning, of course, in federal court. The US Supreme Court just recently turned down Tombstone’s request for an emergency injunction to allow the use of construction equipment to repair the pipeline. The Forest Service will only allow individuals using hand shovels to do some repair work, in the 100 degree heat.

So an historic town may die because the government is worried about whether a couple of tractors will scare away Mexican spotted owls, however many of them there are. The Tombstone epitaph will wind up reading, “What the Cowboys could not kill, the Spotted Owls did!”




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Tort Reform vs. “Loser Pays”

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The concept of reforming the American legal system to adopt the “loser pays” system used in most foreign countries, by which the loser pays the winner’s attorney’s fees, is popular among libertarians. “Loser pays” is proposed as a means of deterring frivolous litigation and solving the problem of excessive lawsuits. When Texas recently adopted the system, it was championed as a victory for small business. I have seen John Stossel advocate it, and in Liberty I have seen Gary Jason endorse it in a comment on one of my essays. “Loser pays” is a policy that might seem reasonable to a non-lawyer layperson. To a lawyer like me, unfortunately, it looks like a policy with unintended and unfavorable consequences — and a policy that has little chance of accomplishing its purpose.

The idea that it will deter frivolous litigation hinges on the idea that the frivolous litigant will lose. Yet if frivolous litigants actually stand a good chance of winning, then “loser pays” deters nothing except poor people, who would find it riskier to access the justice system. In torts lawsuits, the laws are such that bad plaintiffs with bad suits often have a good chance of winning. For instance, Liebeck v.McDonald’s was a lawsuit in which a woman sued McDonald’s because she spilled hot coffee and burned herself, for which McDonald’s was held liable at trial for millions of dollars (mostly punitive damages) and ultimately settled the appeal. This is the quintessential bad lawsuit, and it was held up as a poster child for tort reform. Yet the plaintiff won at trial, on the argument that the coffee was excessively hot and the cup’s warning label was too small.

This lawsuit could have been stopped by reforming the law, that is, by creating a bar to punitive damages whenever there is a warning label. Because the case settled, it would have been unaffected by “loser pays.” Under “loser pays” the risk of having to pay McDonald’s’ legal defense fees if the plaintiff lost might have factored into her calculation of whether or not to sue. But she won the case at trial, and if cases like this happen, then who really expects plaintiffs with bad cases to be excessively afraid of losing? As I will explain below, you don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury. So if a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits. The best solution is to reform the tort laws so that plaintiffs with ridiculous cases have no legal way to reach a jury.

You don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury.

Meanwhile, “loser pays” is likely to scare poor people with valid claims away from court, by inspiring the fear not only of losing but also of paying the huge legal fees of a wealthier opponent’s high-powered law firm. The landmark civil rights litigation that helped to end Southern segregation might never have been filed in a “loser pays” system.

As for frivolous suits — There are already legal ethics rules and civil procedural rules that forbid and punish lawyers for bringing “frivolous”, “vexatious”, “abusive” suits, and there are provisions that enable judges quickly to dismiss baseless or groundless claims. “Loser pays” will add little to the tools that are already there to deal with the frivolous. In fact, the only way to prevent bad litigation is to eliminate the bad laws that form the legal basis of bad lawsuits.

Let me clear: I am an advocate of tort reform, just not of “loser pays” in particular. There are many tort reform policies to choose from that would reduce unnecessary or harmful litigation without toxic side effects. We could, for instance:

1. Reduce the percentage of the tort plaintiff’s contingent fees that are considered “reasonable.” Legal ethics rules ban lawyers from charging “unreasonable” fees, but a whopping 30% is considered reasonable, and 30% is the typical rate. I think a cap of 5% as “reasonable” would cut the amount of frivolous litigation in half. In this way, torts plaintiff lawyers would enter their practice with some other goal than becoming multimillionaires by exploiting the tragedies of their poor clients.

2. Eliminate class actions. The whole concept of class actions has always bothered me. To say that someone else has the right to litigate my claim without my consent or involvement, just because our claims are identical, is absurd, even if there are requirements of judicial consent and competent representation and the ability to opt out. Judicial efficiency, which is the valid motive of class actions, is not an excuse to let someone else litigate my case. Because class actions have millions of plaintiffs but only one law firm, the lawyers often make millions while the plaintiffs each get a few cents.

Now, there is already a rule in legal ethics codes that bans lawyers from representing multiple clients who have conflicts of interest with one another — something I believe most class action clients have, because each client’s claim is slightly different and might benefit from the case’s being tried differently. The conflict of interest rules are considered to be among the most important, yet class actions have a loophole. So instead of effecting a statutory ban, I propose simply to close the loophole and force class action lawyers to vet every member of the class for conflicts of interest. Any conflict would remove that class member. This would sharply reduce the volume of class action litigation.

3. Change the products liability tort standard from strict liability to negligence. Products liability cases are typically tried under a theory of “strict liability,” which means that fault (i.e. blame) need not be proven. Strict liability is an affront to logic, an abomination. While some see the purpose of tort law as deterrence, I see it as compensatory justice, which means that damages are supposed to restore a victim to the condition he or she would be in, had the defendant not made a bad decision. I view tort law and contract law as twin aspects of free will and personal responsibility, as recognized by law: contract law means that your choices will bind and control you, whereas tort law means that someone else’s choices will not be allowed to ruin you. If defendants have not made bad choices, there is no reason to make them pay.

If a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits.

Although a layperson might think of negligence as something that happened to cause an unintended accident, the better understanding is that it consists of the choice to be careless and risk-prone. The strict liability standard has been justified on the grounds that product defects are technologically complicated and it would be too difficult to prove negligence, but this is no excuse for bad law. We should force plaintiffs to prove negligence. Then everyone will benefit from cheaper prices, because manufacturers’ litigation costs will decrease.

4. Reform the standard of negligence for medical malpractice, so as to create a safe harbor. Medical fees skyrocket when doctors are forced to pay huge medical malpractice insurance premiums, and the practice of medicine is compromised when doctors based their decisions on fear of being sued, not the health needs of their patients. My safe harbor proposal is that if a medical practice or hospital had a written policy of procedures designed to prevent the type of malpractice that is at issue in a case, and the policy was implemented and regularly enforced and internally audited for compliance, then negligence cannot be proven. Similarly, if a surgeon or delivery obstetrician had a checklist of risks to prevent, a list that multiple doctors double-checked at the time of the surgery or childbirth, and the negligence at issue was on the list, then the doctor would have entered a safe harbor.

This is simply common sense: if the doctors were taking every possible systematic action to limit risk, then they were not negligent. Such precautionary policies would protect patients from accidents far more effectively than the tort lawsuits that drive up medical costs. Such a negligence test would cut frivolous lawsuits. State legislatures can codify my safe harbor rule, but clever judges could tacitly incorporate it into preexisting common law med mal negligence standards.

5. Put a statutory dollar limit cap on damages. My understanding is that a civil trial is really just a popularity contest in which the jury votes for the lawyer it liked the most. Instead of faithfully interpreting the judge’s instructions to the jury (which are often so technical that only a lawyer could properly apply them), the jury awards lots of money to the party it likes and punishes whichever parties it disliked, by making them pay huge damages. Usually poor old helpless plaintiff Mr. P, the janitor with a wife and five children who is suing because he broke his leg, is more sympathetic than the rich big business defendant Corporation D, especially when Mr. P’s lawyer slyly insinuates that D cut corners on safety in order to make a profit. This is the open secret, the 800-pound gorilla in the room, when people talk about tort lawsuits and tort reform. This is also one reason why “loser pays” is ridiculous: from a practical, pragmatic, no-nonsense point of view there is no reason to believe that the loser is the one who deserved to lose.

The right to a jury trial in cases that are “at law” (i.e. where the plaintiff seeks money) is constitutionally “inviolate,” and I leave for another essay the question of whether jury trials should be comprehensively reformed. However, at a bare minimum justice demands that we solve the problem of headstrong juries by removing jurors' discretion to award damages in excess of what the intent of the law indicates, simply because they happen to feel sympathy for one side or another. Activist judges who do not faithfully apply the law are a problem, but so too are activist juries. A legislative statutory solution to place reasonable, honest dollar value caps on each of the different types of damages, or to lower the caps that already exist, is one feasible fix.

In conclusion: “loser pays” is far inferior to the American Rule, in which each party pays his own attorney’s fees regardless of who wins or loses the trial;but there are tort reform solutions available if voters elect legislators and judges who will use them.




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Model Citizen

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Bernie Tiede was a model citizen in the small city of Carthage, “behind the Pine Curtain” in eastern Texas, as one resident calls it. As an assistant funeral director, Bernie took gentle care of the deceased. As a member of a local Protestant congregation, he taught Sunday School, sang in the choir, and made people weep with his lovely tenor solos. As an amateur thespian, he directed local musical revivals. As a trusted friend, he escorted a recently widowed curmudgeonly dowager to concerts, dinners, and even trips abroad. He was generous and kind. Everyone loved Bernie. Even after he killed the curmudgeonly dowager. By accident. Oops.

Bernie is a dark, deadpan comedy in the style of the Eugene Levy-Christopher Guest mockumentaries. But this is no mockumentary; the people being interviewed for this film are real citizens of Carthage, Texas, all dolled up for their close-ups and spouting colloquialisms you couldn’t get away with as a scriptwriter. “She had her nose up so high in the air, she would have drowned in a rain storm,” one snippety resident says about Marjorie Nugent, the deceased dowager. Another gives a detailed explanation of the five sections of Texas, ending with “I sort of skipped over the panhandle — but everyone does.” “The Gossips” (as director Richard Linklater affectionately calls them in interviews) do their best to support their friend Bernie and explain his motives. No one could ask for a better jury of his peers.

Linklater has carefully crafted a combination documentary and fictional bio-flick about this famous (at least behind the Pine Curtain) case. He interviewed dozens of people who knew Bernie Tiede, and then used their stories to write a script about it. Jack Black is perfect as Bernie, inhabiting the role with a distinct waddle, a beneficent smile, and a sincerity that invites endearment. You just want to reach out and hug him, or be hugged by him. Early in the film we join Bernie in his car as he drives through the town, singing a country hymn about his walk with Jesus. That long cut, interspersed with occasional interviews, tells us everything we need to know about his personality.

Marjorie Nugent (Shirley MacLaine) is the kind of nasty, critical, overbearing old woman whom everyone wants to avoid. Her own grandchildren haven’t seen her in four years, and for good reason. At first she is charmed by Bernie’s attention and becomes charming as a result, but eventually she reverts to type, assailing Bernie, too, with her browbeating and criticism. MacLaine is wonderful in this role, tapping into her ingénue days to charm Bernie and then digging deep into her nastiness. But she never revels in the role or tries to steal a scene — she is convincingly Marjorie throughout. Wisely, MacLaine has resisted the Hollywood collagen-botox mania, so she can still move her face. She doesn’t have a lot of dialogue, but she doesn’t need it. Her body language and facial expressions tell us what Marjorie is thinking and feeling without words.

Bernie is one of those unexpected little gems that surprise and delight us in every scene, despite its macabre subject matter. It asks us to sympathize with someone who should be utterly unsympathetic — and we do. Linklater’s melding of actors and townspeople is brilliant — actors could never have convinced audiences to empathize with Bernie, but these real residents who know and love him do. Moreover, the actors seem to have taken their cues from the interviews, matching their cadences and movements to the local residents. The result is a seamless blending of fact and fiction. Matthew McConnaughey is particularly good as Danny Buck, the preening peacock of a prosecutor. The film is a delightful piece of work, with a delightful protagonist. Too bad about Marjorie. Oops.

The film also inadvertently highlights a growing problem with the criminal justice system: the tendency for prosecutors to overcharge, with the hope of forcing a plea bargain. Let’s suppose a young man gets into a fight, and someone ends up dead. The fight may have been premeditated, but the killing was not. The prosecutor charges him with first degree murder and scares the bejeezus out of him with the maximum sentence of 25 to life. A plea bargain to manslaughter would get him a sentence of 8–10 years. Frightened about the potential risk of a jury trial, he takes the deal.

But what if he isn’t guilty at all? What if he has been wrongly accused? He already doesn’t trust the system; after all, they got the wrong man, and he knows it. Nevertheless, facing a potential sentence of 25 to life, and knowing that juries are wont to convict poor kids like him who have been assigned an overworked public defender, he might be convinced to plead out. If he does go to trial, he’s facing the higher charge of first degree, even though the prosecutor knows it should be manslaughter or, at most, second degree murder.

Any film that causes us to take a closer look at the criminal justice system is a good film in my book. And Bernie is a very good film. Don’t miss it!


Editor's Note: Review of "Bernie," directed by Richard Linklater. Millennium Entertainment (2011), 104 minutes.



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Obamacare and Judicial Activism

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Last week the Supreme Court of the United States heard oral argument on whether to overturn Obamacare. I had written previously in Liberty that I suspected Obamacare would stand, and estimated a mere 1% chance of the vile, disgusting step towards socialized medicine being struck down.

But amazingly, Obama’s Solicitor General, who argued the case, was, by most accounts, totally incompetent. He got so tongue-tied that he had to be verbally bailed out by Justice Ginsberg — several times. He could not articulate a limiting principle for where the powers of government would stop if Obamacare stands. This frightened some of the justices (although, in fairness, no such limit can be articulated, because Obamacare is a slippery slope towards socialism.)

Most importantly, Justice Kennedy said things suggesting that he would probably vote to strike Obamacare down. Kennedy is the moderate justice who holds the crucial swing vote between four liberals (all of whom are thought to support Obama’s health care bill) and four conservatives (who are believed to oppose it). So the legal community now suspects that Obamacare is doomed. The so-called “individual mandate” is most likely going to die, and the entire convoluted, ungodly abomination might get dragged down with it, thus ending America’s nightmarish experiment with socialized medicine.

This is great news for libertarians and bad news for President Obama.

How did Obama respond? This is how: by holding a press conference in which he bullied the justices, threatening them with the charge that overturning his law would be “judicial activism” and noting that the Supreme Court is not elected whereas Obama’s Congress, which narrowly passed his healthcare plan, was elected. His statement contains two glaring flaws.

1. Yes, Congress is elected and the Supreme Court isn’t. That is the beauty of the Founding Fathers’ scheme, that the rights of individuals are safeguarded by courts which do not answer to the whims and emotions of the hysterical and easily manipulated masses. Yet voters had sent a clear message that they did not want Obamacare passed, when they elected Senator Brown of Massachusetts. The Brown election was widely viewed as a referendum on Obamacare. It was an election in which a Tea Party candidate won in a strongly left-leaning state. The bill only passed because of procedural maneuvering by the then-Democratic House. The 2010 election of the Tea Party House was a resounding rejection of Obamacare by the American people. Once again, Obama has a mass of facts wrong.

2. The practice of “judicial review,” the name for courts overturning unconstitutional laws, dates back to the famous case of Marbury v. Madison (1803). Since that case was decided, it has been well established that the courts have the power to overturn laws that violate the Constitution.

It is true, of course, that conservatives often bemoan “judicial activism,” and now Obama is bemoaning it. So what is the difference between judicial activism and judicial review? Is it merely that if you like it you call it judicial review and if you dislike it you call it judicial activism?

I do not believe that’s the truth. I would offer a deeper libertarian analysis: the Constitution of the United States was designed to limit the powers of government and protect citizens from the state, as a reaction by the American Revolutionaries to the tyranny of the British empire, which they had recently defeated. Democrats love to say that the Constitution is a “living document,” which means that the Constitution changes to reflect the desires of the public (which, they believe, have become ever more leftist since the American Revolution). But the meaning of the Constitution is clear, and it does not change. The argument to overturn Obamacare comes from the fact that Congress has only the enumerated powers given it by the constitution. Obamacare sought to use the Commerce Clause, which gives Congress the power to regulate “interstate commerce,” in order to effect a partial nationalization of the healthcare industry. But as I argued before, and as Justice Kennedy implied at oral argument, this is far beyond what the Commerce Clause and the cases interpreting it explicitly permit.

So it will not be judicial activism but judicial review, which consists of faithfully conforming the law to what the Constitution allows, if the Supreme Court overturns Obama’s health care plan. It is judicial activism when leftist judges follow the philosophy embodied in the legal theories called “legal realism” and “critical theory.” These theories hold that there is no such thing as an objectively correct or incorrect interpretation of the law, and therefore a judge is free to rule as his or her subjective feelings on morality and justice dictate (and note that somehow these feelings are almost always Marxist or leftist feelings).

Critical theory, which explicitly attacks the legitimacy of “legal reasoning,” is hugely popular on many law school campuses. Many of the lawyers and judges of the future may buy into it. But when the Supreme Court rules on Obamacare in June of this year, I hope it will be clear to the Marxists that they don’t run America quite yet.




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Some Thoughts on Sharia Law

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I can’t say I’m in favor of dripping acid into peoples’ faces — but, given the right circumstances, I might appreciate the opportunity. I got to thinking about this back in the summer when Amnesty International called upon Iran to revise its penal code.

Sharia law provides for retributive justice and the retribution in question was made available to a woman named Ameneh Bahrami who’d been blinded when a creep named Majid Movahedi threw acid into her face after she refused to marry him. Outside of being a good judge of potential husbands, Ms. Movahedi holds a degree in electronics and held a job at a medical engineering company. She seems to be an accomplished woman who, even in the Islamic Republic, had a really bright future.

Now it seems that she doesn’t have much of a future at all. I hope I’m wrong about this, but it’s hard to imagine how any blind person could hold down a job in engineering, or how anybody as brutally scarred as Ms. Bahrami is going to have much luck finding a husband to take care of her. What she did have was the opportunity to visit Mr. Movahedi while he was strapped onto a hospital bed and pour acid into his eyes. For a long time, she wanted to do it, and I can’t say I wouldn’t have wanted to, also. Then Amnesty began to put the squeeze on her to back off, Ramadan and the time of forgiveness came around, she forgave and, from looking at the beaming pictures of her scarred face, it’s easy to see she feels pretty good about the decision. Think what would have happened in a similar situation in America.

For starters, the crime wouldn’t have been against Ms. Bahrami. It would have been against the State, and she would have been nothing more than a witness, if the judge had even allowed her to testify, because it’s easy to see a defense lawyer convincing a judge that the mere sight of her scarred face was too inflammatory for the jury to be allowed to see.

Even if she were allowed to testify, it’s not hard to imagine the same defense attorney convincing a jury to acquit on the ground that, since she was blind and all, her ability to identify her attacker simply wasn’t good enough to dispel all reasonable doubt that the guy who’d thrown the acid really was the same man sitting here in court.

Perhaps the prosecutor would be worried about getting a conviction, or just have too many trials to handle, and let Mr. Movahedi plea-bargain his way down to, say, second-degree assault and get off with time already served. No matter how things shook out, Ms Bahrami’s feelings would have had no bearing on the outcome.

I prefer the way the Iranians handle this. I like it that Ms. Bahrami is the one who not only got to decide what happened to Mr. Movahedi, but would have been the one to do it to him.

Or not. Either way, she was the one who got whatever emotional satisfaction there was to be gotten from the situation. I also don’t mind thinking about Mr. Movahedi spending something like the seven years he spent in prison waiting for Ms. Bahrami make up her mind about whether he got the acid treatment.

What Ms. Bahrami did have was the opportunity to visit Mr. Movahedi while he was strapped onto a hospital bed and pour acid into his eyes.

Or, take an example that’s a little closer to me, personally. A few years ago my nephew was riding home on his bicycle. He had just been licensed as a civil engineer, and he and his father were about to launch into business together. He was, when I think about him, the best that his generation, the best that America, had to offer. He was smart and hardworking; he had a beautiful bride, a winning personality, and a glorious future — all of which ended when a middle-aged driver fell asleep, ran onto the shoulder where my nephew was riding, and put a stop to everything except his life with massive brain damage.

The thing was, it was probably the worst day of the driver’s life, too. She showed up at the hospital, sick with grief. And wasn’t allowed to see him. The lawyers thought it was a bad idea. She showed up repeatedly and never got into the room. Always the lawyers.

The boy’s father is a kind, generous man who would have given comfort to the driver, if he had been allowed to. And she to him. But they weren’t permitted to meet. Instead, the only satisfaction he got was to drive out to the highway and look at his son’s blood puddled on the asphalt. And the driver had to watch her trial grind its way through the legal system with no concern for whether the boy she had hit, or his family, even wanted her to be on trial.

Now, imagine if something like this had happened to an American in Oman in the mid-Seventies. It did. To a good friend of mine, only he was the driver.

Three years earlier, no Omani who wasn’t either in the military or the royal family even owned a car. In fact, no Omani even owned sunglasses. The sultan was opposed to things Western. Then he was deposed and the next sultan began to modernize, so the road my friend was driving along was brand new. And the old gentleman standing on the side of the road was newer still to the whole concept of high-speed traffic when he stepped out in front of my friend’s car.

My friend slammed on the brakes, spun the wheel, fishtailed, caught the old man with the rear of his car, then rolled four or five times before coming to a stop. The court my friend had to explain himself to was Sharia: a single judge with a council of elders to advise him.

I mean it when I say that my friend had to explain himself. Nobody got to have a lawyer. The old man spoke, my frind espoke, the police told what their accident investigation had found, the judge consulted with the elders, the village sat in a semicircle and listened, and the judge announced his decision:

To the old man, he said, "Our country is changing and you need to pay attention to those changes. By stepping into the road in the way you did, you have embarrassed a guest in our country."

To my friend, the judge said, "It appears that there was nothing more you could have done to have prevented what happened. I instruct you to pay the old man three rials." Rials were worth about $2.50 at the time, so my friend was ordered to pay seven-and-a-half bucks.

Nobody thought the rials compensated the old man for whatever injuries he had received. That wasn’t the point. The point was dignity. Regardless of how it happened, the old man had been hurt and my friend had been involved. The rials were for honor and, I am almost sure, for my friend too. To clear the books in his conscience as well as to make the old man feel vindicated.

Clearly, the lady who ran down my nephew was a lot more culpable than my friend, but ask yourself. If you had been either driver, would you rather have hired an expensive lawyer to try to justify your actions to a jury chosen at random from voters’ lists and then, if you did get off, perhaps face a trial for civil damages until you were bankrupt from attorneys’ fees? Or would you rather have told your story to a council of wise old men? I know which one I would choose.




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