5-30-05 The Case Against

This is in response to the Evangelical Capitalist blog article, "The Case for Loser Pays"

The case against:

The traditional statue of justice has three characteristics. It is the third, less discussed, that is at issue with the so-called "tort reform" proposals. She is blind, as we all know. In one hand, she holds the scales, we all recognize. The other hand, however, is held out palm up - an indication of her willingness to render decisions based on cash outlays.

The US legal system, as it stands, allows for the purchasing of superior representation. As such, fairness is relative to resources. Whoever can afford the better legal representation can tilt justice to their favor. This is true in both civil and criminal court systems. The comedian, Chris Rock, once commented on the OJ case, saying that if OJ had been a bus driver, there would have BEEN no case. He would simply be "OJ the bus drivin' murderer" soundly tucked away in jail.

In civil matters, a "deep pocketed" plaintiff or defendant will a well staffed legal team can sometimes elicit a settlement simply by exhausting, or threatening to exhaust the financial resources of the opponent. As such, the deep pockets become a heavy advantage in legal proceedings. One without means, but with a legitimate claim, may find that lady justice with her hand out asks too much, and accept a lesser fate.

To read an amazing account of the legal struggles between a deep pocketed corporate plaintiff and a group of citizens, the story of the McLibel case, the longest case in the history of British law, is eye opening. The two defendants, Helen Steel and Dave Morris, unable to hire appropriate defense against the McGiant, became their own lawyers, took up their own defense, and devoted their entire lives to the case. The McDonalds company, on the other hand, hired some lawyers for a few hundred million, and went about their business. In the end, the McLibel two lost on over half the counts, and were ordered to pay fines. (McDonalds waived the right to ask them for legal costs.) They have appealed the case to an international court on the basis that the British legal process unfairly favored their unimaginably rich opponent.

Edward Luttwak, from the Center for Strategic and International Studies, in his book "Turbo-Capitalism" (HarperCollins, 1999), discussed this monetary advantage and the existing American system of pseudo-compensation for it as follows:

"Two peculiar features of the American legal system go a very long way to redressing the balance. First, in contrast to the norm almost everywhere else, where the loser must pay the winner's legal costs as well as his own, American courts rarely order the payment of the winner's costs - and almost never do so if the winner has 'deep pockets'. The effect is to greatly reduce the risk of suing big corporations whose legal bills can easily run into millions of dollars. That in turn makes possible the second peculiarity, a practice prohibited or at least held unrespectable in most other countries: American lawyers are routinely eager to work for success ('contingency') fees alone, claiming as much as 25 or even 40 percent of the winnings if monetary damages are awarded, nothing at all if the case is lost. Thus any plaintiff with a reasonable chance of winning substantial damages can very easily find lawyers to serve him at no cost, including some excellent ones with efficient offices and all required experts on retainer."

These features, however, can give rise to heavy legal expenditures by deep pocketed defendants. The example given on the Evangelical Capitalist blog was about a woman suing a rail company after being hit by a train, reported by Fox News. The rail company will have to defend this case, and if they win, are not likely to be awarded redress of legal costs. This is an extreme example.

The more reasonable and apropos examples come from the medical profession, and the American Medical Association's call for the recognition of a medical liability crisis. In the AMA case, the idea of tort reform is a call for a cap on monetary award for "pain and suffering" portions of medical malpractice cases. California, for example, has a $250,000 cap on "pain and suffering" jury awards, and is cited as an example of good tort policy. The AMA does not advocate a switch to a "loser pays" system, recognizing that in medical malpractice cases, such a system would be horribly unfair.

Libertarian advocates of the "loser pays" system do not typically address the economic inequality of the legal system, preferring to advocate liberty for the wealthy party, but never addressing the inability of the less advantages party to seek liberty. Civil and human rights advocates, on the other hand, call for a universal ability to address grievances, but don't offer a way to address the enormous costs required, which must be borne somewhere.

To me, the more interesting question is a root systemic question about for-profit legal practice. Is competition among lawyers in the best interests of justice? While I'm sure that lawyers can give a reasonable explanation for this, I can't imagine how it could be. If the best lawyers cost the most, and are available only to the wealthiest clients, how can justice be equally distributed between rich and poor? Add to that equation the incomparable wealth of the fictitious corporate person, and the balance of justice seems far from just.

Even at the day to day level, among people I know, this unfair system is clear. For a couple of thousand bucks, one can generally get their DUI dismissed pretty easily in LA. But, those who can't afford the "Top Gun DUI" lawyers are told by public defenders that the best option is to plead guilty. That's what they told me, anyway.

Maybe someone can answer that for me. Why is profit-motivated competition between lawyers beneficial to society and the justice system? Of course, the huge profits are incentive to make for really great lawyers, but don't the presence of those really great lawyers make the system unjust? Is there a way to pay for legal services without incurring this injustice. If not, why are we individually paying for lawyers? Why not find some other system of distribution of legal representation that doesn't offer advantages to the deep pockets?

I don't know. Sue Me. And, I can't afford to defend myself, so - Fuck it - you win.

05-26-05 Torture

Is tourture ever justified?

There is an argument for the use of torture from a moral standpoint. There is, it is generally, a scenario under which torture is morally justified. This scenario is known as "the ticking bomb scenario". It is almost always, in some form, the basis of any argument in favor of the use of torture.

The ticking bomb scenario goes like this: Agents capture a man who they know has knowledge of the location of a ticking bomb somewhere in a populated area which, when allowed to detonate, will cost some number of lives. The agents know that the captured prisoner will provide this infomration acuratly when subjected to torture. In such a scenario, the pain and suffering endured by the one man is vastly overshadowed by the certian deaths of so many others, and the torture is morally justified.
However, the ticking bomb scenario is only theorectical. There are so many specifics that must be true for the scenario to be realized, that it has scant a chance of occuring. It must be assumed that the torturer KNOWS the bomb exists and it ticking, KNOWS the man he has captured has the information, and KNOWS the prisoner will give up such infomation ACCURATLTY under torture. The ticking bomb scerio is time dependant, specific, and limited.
Proponants of torture argue that the ticking bomb scenario, in it's pure form, is too restrictive, and less stringant criteria of "resonable certianty" or "resonable suspicion" can be applied and still be morally justified.

Example: If the existance of a ticking bomb is 80% certian; if there is an 80% chance that the captor has information that will lead to harmless diffusion; if the prisoner has an 80% chance of giving up information under torture; and if the informatio, in turn is correect 80% of the time, then the infomation obtained by torture would save lives in 40 out of 100 cases.

But, if one tortured prisoner in a batch of a four hundred resulted in information which saved 1,000 lives (or 6,000 in the 9/11 situation), the cost can be said to be justified based on the results, so long as any of the tourtured prisoners lived.
Of course, if the same four hundred prisoners get the electrode shock treatment, only to find out that the ticking bomb never existed, you've got a real moral problem on your hands.

In the above example, all the odds were based on the assumption that the bomb existed, and that the process was moving twards accurate information with 80% certianty at every step. Those conditions are still fantasticly unlikely.

When touture is applied in a non-specific and non-time dependant situation, the likelyhood of obtaining information so life saving that it provides moral justification for the use of torture is very slim. In fact, information obtained under torture is notoriously unreliable. What would you tell your captor to get that snarling dog to stop barking at you from mere inches away from your blindfolded face? I'd tell him the names of fifty people who shit diamonds, if he asked.

But, the most commonly spoken argument for the use of torture has nothing to do with ticking bombs. Simply stated, the argument is: "They do it."

"They do it, so we should, too."

By this logic, every act is ethical if someone else has done it. Since Jeffery Dahmer raped his mother, killed her, and kept her skin as a souveneir, it is Ok for me to do that, also.

"No. They do it TO US. So, we can do it TO THEM."

Oh, sorry. Big difference.

In any moral or ethical discussion of human rights, and human practices, there really is no "us" or "them". Or, at least, we should hope that there isn't, lest someday we be "them". Slavery, opression, killing, rape and torture are not acceptable for any particular group. They are either acceptable or unacceptable to human beings. Once the standard is established, it should be applied equally to all human beings.

The standard, for the US, is long since established. One of the oldest verses of our hallowed legal texts specificly decries "cruel and unusual punishment". We have signed international treaty after international treaty against the use of torture. The most recognized are the Geneva Conventions, signed by a whole host of countries . Specifically, the Third geneva Convention, signed in 1929, dealt specifically with captivity and prisoners.

(Art 17): "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind"

Naturally, the strength of any treaty lies in the parties mutual adherance to it. As such, the US, being the largest world military power, has a responsibility to uphold the treaty weighted to its size and influance. If the US abandons the tenants of the treaty in its dealings with other nations, the motivation for smaller nations to similarly abandon the treaty may be increased.

Amnesty International, the human rights watchdog group, released it's report on the state of human rights worldwide yesterday. Included in the report were scathing critisim of the alleged US torture tactics at Abu Grade and Guantanamo Bay, and the US refusal to mount meaningful investigations into the incidents. Irene Kahn, Amnesty International's sevcretary general said the following in a speach to the Forign Press association:

"Furthermore, the US, as the unrivalled political, military and economic Super Power, sets the tone of governmental behavior world-wide. by thumbing its nose at the rule of law and human rights, what message does the US send to repressive regimes whohave little regard for the rule of law anyway?"

Anmesty International has designated June 25th as a day of action against torture. And has a petition for US citizens to denounce torture here.