On the Proper Place of Torts Among Mechanisms for Ensuring The Public Good

The NYT just had a book review of Thomas Geoghegan’s "See You in Court" which inspired me to note briefly a thought I've had for a long time regarding tort reform.

In any given general problem, there will likely be a heirarchy of potential solutions, ranging from most to least desirable. (Of course,for specific problems, the most desirable solutions are often unavailable forcing a fallback. The best remaining solution may be no solution at all.) There's a lot of truth to O, Superman: "When love is gone, there's always justice; when justice is gone, there's always force." The heirarchy is, people play nice. When they don't, we use the law as a resolution mechanism, and the law is backed by force. Even when the law vanishes or lacks legitimacy, force may be wielded extralegally to fix the problem.

Of course, a fundamental problem of politics (which I've also been thinking about because of events in Venezuela) is to maintain the use of the highest levels of resolution of problems as an alternative to perpetual violence. When institutions fail to bend to demands, they break and the resulting vaccuum of working, legitimate institutions results in a series of failures and inefficiencies that make revolutionary change undesirable except where an injustice is severe and reformist efforts remain unlikely to produce success. (Of course, if you believe this happens fairly frequently, you can share this philosophy and still be free to still call yourself a revolutionary.)

The NYT reviewer, Adam Liptak, contrasts Geoghegan with Philip K. Howard, saying Geoghegan sees the movement away from reliance strong contracts rather than increasing regulation as a cause. This strikes me as a very wierd contrast. I've not read Howard -- could he really believe deregulation prevents lawsuits?

My view, like Geoghegan's, and apparently Howards's, sees a shift in arena as the problem: toward tort from other mechanisms. But like Geoghegan, I believe the problem is not that the ugly ineffecient systems of redress lower on the heirarchy have been promoted so that people forget the better tools available; it is that the better tools have been taken away or become ineffective so that resort is made to something less desirable.

I don't think most people think, why should I talk to my neighbor about their vicious dog when I can just call the police, or why should I call the police when I can just shoot the dog (or the neighbor). Most people are smart enough to know that the better mechanisms should be tried because they are cheaper, easier, generate less pain for both sides or for the public at large, and at times can be more effective. Most of the people I see in my civil law practice undertake tort claims only after they have tried mightily to resolve the matter socially and administratively first. (The criminal defendants tend on the whole to be less resourceful in finding legal means to redress their problems.)

The idea that the decline of contract has led to the rise of tort does not resonate that much with me, though I'm sure there's some truth to it. It would mean more to me if we were talking about contract terms that were regulated. Residential leases are a good example. Lots of terms must be in or out of a lease for them to be valid, which has led to leases being very standard. I see regulation as having a high place in the heirarchy. When some activity creates a risk of harm, you regulate it, whether it's by making it unlawful for an individual to recklessly endanger another's safety with a firearm, or by forcing an industry to market only safer products and services using safer means to conduct their activities. Deregulation represents a choice on the part of government to give the subjects of regulated activities more freedom, leaving nonregulatory mechanisms to address the risk that they will do harm .

Generally, the right favors deregulation because it believes market mechanisms will be sufficient. For example, you start a business making cheap soap in your garage: you will have an incentive that the soap not injure or kill too many people too quickly or tracably, because word would get around, the market for your soap would dry up, and you would lose the income stream from tainted soap and probably go out of business. When you start again, you'll know better. If you don't learn, you'll keep going out of business and face a credit crunch. Hence the market disfavors manufacturers being careless or stupid.

Of course, stupid still happens. You can't deter stupid. There are also deterrents to crime and crime still happens. Most crimes are less vicious than stupid anyway. And our experiences with unregulated markets have also seen many victims. With only the market to protect them, victims would be left with nothing but the meager satisfaction that if they tell their stories and are believed, they can hurt the sales of the soap company. Hardly make whole relief for them. Same for crime victims, and even with tort law, the same fate meets prospective plaintiffs who cannot find a big pocket defendant. Every couple of months, the local news has a story about a local business that went under and left clients in a lurch. A great number of businesses are undrcapitalized, fail, and those with at least some customers relying on them cannot even sue, except to wait in line behind a series of creditors.

So regulate as much as reasonable. Then, have torts as a backup. Having torts as a backup acts as a pressure to self-regulate.

Of course, if you shred regulation and shred tort, what are people left with? Vigilanteism. While there are stories that pop up all the time in the news where some violence can be traced to a grievance that was legally unremediated (and the anger often diverted to some easier target), I think a good example is in divorce cases. Some people exit a relationship with such undigested anger that they do stupid and destructive things. The solution of last resort is to go after these people criminally, like all the deadbeat parents constantly being shamed on the local news, but I don't see this as really deterring anyone, and in most cases provides little relief to the victims. We need to look upstream for better solutions toward the love-justice rather than the justice-force end of the spectrum.

Partisanship

Another very brief entry:

The News Hour tonight had four authors at the table decrying polarization and excessive partisanhsip. I know I will not be alone in my thoughts on this. Basic point: sure. Gotta get along. Can't make everyone the enemy who merely espouses a different viewpoint. Can't follow the model championed by SWMNBN and just kill everyone who disagrees. There have to be some principles of what's fair.

But it disgusts me more than a little bit that:

1) After eight years of Bush and Rove litmus tests, whisper campaigns, personal attacks, using the IRS and leaking classified information to punish opponents, politicizing the whole government, caging voters, stealing elections, calling Democrats traitors, using every tool from gerrymandered redictricting, changing election rules, past-midnight votes where the vote changes after a bribe or a threat is made, changing congressional rules, issuing illegal executive orders and signing statements, ignoring the laws, concealing information from Congress, turning congressional Republicans into a politburo, striving to monopolize K Street donations, and striving to win every vote by 1, with the most extreme possible platform, after all this, suddenly, as the pendulum starts to swing in favor of the erstwhile minority, polarization and partisanship beccomes an issue.

2) No one identifies who is to blame; apparently it is everyone equally, or maybe Joe Lieberman gets some credit for being a closet neocon.

3) No set of principles of fair play is articulated, just vague "try to get along" and "don;t be too partisan" which is so meaningless, it can always be projected to your enemy.

I'm sorry. It's hard for me to concentrate. Karl Rove is on Charlie Rose getting the usual puffball treatment. He just said the Democrats have been unsuccessful this term because they don't show enough respect to their republican peers or compromise enough, and it's sort of making me want to retch.

Horserace

One way of looking at it: Tim Russert and his guests present news about the voters that the candidates need and care about so they can influence the voters. If they covered the candidate's positions, that would be giving voters news that they need and care about concerning the candidates. It fits in with the fact that Tim and crew are much closer to the world of Hillary and Rudy than they are to the general populace of the country.

Meet John Dau

A few nights ago, I went to see an installment of UWM's distinguished lecture series. The speaker was John Bul Dau, billed as an authority on the "lost boys of Sudan." (I think "lost boys" is a media/marketing title that the International Rescue Committee came up with; since most of them were sitting in refugee camps for a decade or so, they were displaced, but not exactly misplaced.) I went at an invitation of a political friend, and expected a political event. Sudan is a political topic these days. The local peace movement has made resolving the civil war afflicting Darfur a major campaign. I don't know much about it, except that I suspect things are not as
one-sided as portrayed. (I also think I was encouraged to go because a previous African speaker, a high government figure, had received almost no audience when he had come to speak, and this was a means of demonstrating respect that was missing before, which suggested a general lack of interest or respect for the continent and its people.)

Dau turned out to be a somewhat celebrated survivor, a former lost boy, who put his story in a book and was the subject of a documentary. Thousands died. John became famous, although not famous enough for me to have ever heard of him. Although I expect most DLS speakers to have a strong academic background from which to speak, I think life experience is an appropriate credential. Rigoberta Menchu has something to say worth listening to, so why not John Dau?

So I listened as John described his tale of trial and triumph surviving war, hunger and disease on a thousand-mile, 14-year journey from his escaping as a boy from an attack on his village, trekking afoot cross-country to sojourns in refugee camps in two neighboring countries. (Some of this is filled in from subsequent inquiry because of missing details in John's account.) It was a compelling story.

But there was absolutely no political context. He said nothing about the current conflict except for a passing mention, and maybe some indirect innuendo. I'm not sure he ever said who was shooting at him in Ethiopia: government soldiers or rebels. The conflict that displaced him was not examined. He appeared uninterested in its being solved.

Let me recant one part of that. He did insert a tiny bit of history, saying that Sudan has had frequent wars from the first century. He did not say what they have been about. Some in the audience clearly believed at the end of the night that Muslim forces were fighting early Christians a thousand years ago, impossible by at least six centuries. There was no distinction made between the international conflicts with Chad or Eritrea, with Pharaonic or Roman, or English, or whomever, or current movements in the East, West, or South in conflict with the central government.

At the end of hislong windup came the pitch: a Bill Cosby sermon about personal responsibility, and a request for money for his foundation. John said that priming the audience for this little bit of homespun ideology was the entire purpose of his narrative.

Now, I am reluctant to attack John. He went through hell. His story is a real one. It's hard to attack someone in that position. I tend not to doubt his honesty and motives for the most part. I think there's some fuzzing and sifting that he's doing to spin his message, but probably that's all. He could be a major fraud but nothing really conclusive to suggest so. It's too easy to see him as nine tenths honest. But the point is not the man himself. It is what he is saying, which is toxic. It may be that if he explained himself further, he could trim the most disagreeable points of his philosophy. Indeed, he explicitly contradicted some of the worst conclusions of this meme. But I want to respond to what he actually presented in all its ramifications, which I think was just horrible, horrible.

The ideology is one I've heard a thousand times before, and it's utterly tiresome to me: All that stands between you and success is the will to achieve it. Don't give up. You can have everything you want if you just believe and try. Some of that is fine. Focus on the future, sure. Practice forgiveness. Concentrate on what you can do for your own future. Help others who have helped you. All good. Perservere. Fine. The problem is not that one has no influence over the course of one's life or should not keep going if one is on the right track. Obviously, there's a basic dumb truth in this message. It's a message like "be proud of yourself" that some need. But...

It's dumb because it's unidirectional, un-nuanced, just plain dumb. Like "eat more": good for anorexics, bad for compulsive eaters. I forgot who said that patriotism was a kind of message that was good for small countries with esteem issues, but bad in places where an existing overdose of nationalism lay at the root of imperialism, aggressive war, or internecine destruction; the same is true here. It's a message that I think selectively targets the people who need it least.

Worst, because it's unnuanced, it logically entails all sorts of bad and evil conclusions. It contends, ultimately, the only thing that affects one's personal outcome is their own ambition. So what does that say about those that reach bad outcomes? What of the thousands of John's travelling companions who fell prey to hunger, thirst, corcodiles, gunfire, or disease? It implicitly blames the victims of misfortune, irrationally discounts the huge effect of luck, and lets the villainous and selfish off the hook. It also puts all its marbles on ambition and resolve rather than on morality, smarts, and unified struggle. Sure, step one is not to give up, but step two has to be something more than marching in the same damn circle. John's message is in the beginning and at the end a fascistic ideological cesspool that breeds abandonment of the needy, rationalization of extreme disparities, and the erosion of comity and ethics. It's a message that stills demands for change, protecting and flattering the privileged, and narcotizes and promotes pathological conduct among the disadvantaged.

John actually said that you can take any rich person, and you will find someone who struggled and achieved. They don't have inheritance in Africa? He actually said he had never gotten vaccinated against any disease, yet has never become sick, due to his own personal will not to fall ill. In other words, he's a walking potential carrier that could infect others, and if they die, it will be their own fault for lacking sufficient willpower to resist. (Nevertheless, he wants to build a clinic in the Sudan. Hopefully it will be a clinic that practices modern medicine and not faith healing.)

I hate this meme. Every get rick quick huckster and phony preacher uses it. It combines an immature animistic view of the power of beliefs, with the idea of a God who guarantees that every fate good or bad is always deserved. John dropped a lot of Christian references, as did members of his audience during the questioning. A church brought him to America and he now lives across the street from that church. The black woman next to me was muttering hallelujah at intervals throughout the ending parts of the talk, by which point its status as a sermon rather than an academic exposition had become clear. I was grateful to get out without a baptism or an Amway distributorship.

Although I have said that I give John the benefit of the doubt that he was being mostly honest, and that he has some decent beliefs and holds his belief in this key meme ignorant of its contradiction of everything good he believes, nevertheless, there were some aspects of the talk that gave me doubts. The main thing was that the message was so predigested and unchallenging. No analysis. No hard concepts. No demands for any ongoing involvement. This fit in with his repeated flattery of the audience that Americans are unbelievably generous, which does not seem to square with either the general facts of the world (other industrialized countries spend much larger portions of their GDPs on humanitarian aid) or with the facts of John's story (where he lived off the largesse of the UN, Sudanese rebels, and two poor host countries before ever seeing an American or any American aid). He created a foundation to help American children before creating one to help Sudan. He even flattered the host forum by instructing students to study hard and give back money to the school. He wore a perfectly crisp white shirt, no jacket, and perfect pressed plants, which was the ideally earnest and nonthreating ensemble. He included just a tiny drop of history and geography. He avoided controversial issues, save for a few flashes of popular conservatism: marriage is for one man and one woman (unlike among traditional Dinka); he asserted that moderate Muslims who did not vociferously denounce extremists at every opportunity ought to be considered just as extreme (though he never breathed a word against Christian extremists). He favored his people assimilating to America, but keeping unthreatening aspects of their original culture, like family cohesion. He dropped the names of Hollywood celebs who are now his friends, while affirming by denial that this was a boast.

By the end, I had started to wonder about parts of his story. What was he leaving out? He was very obscure about his family, leaving the impression they were dead until he suddenly mentioned reuniting with his mother at the end of the night. Why? Did he have reason to feel before this that he had abandoned them? What moral compromises did he make? He said he was put in charge of a thousand kids, then later there are 28,000: was he intentionally leaving the misimpression that his responsibilities had exponentially grown? A story he told about enjoying corporal punishment of his students at a refugee camp seemed a little more ominous in retrospect. Any why does he have so many foundations? Did he really make enough at McDonalds to build a four bedroom house, or did he pay himself at these charity groups?

Anyhow, all the last of this is too speculative. I'll let those thoughts dissipate before I sound too much like one of those right wing bloggers that see conspiracies everywhere. Main point: I came for an analysis of a humanitarian crisis, but got no analysis at all, no clarity, just an insistance that we were already generous enough and a pitch to be endlessly optimistic and push on in all matters without assessment. Bleh!

Waterboarding

There are a bunch of questions. Was Mukasey giving an evasive semantic answer to a substantive question when asked a substantive question whether waterboarding is torture? Is it torture? Does it simulate drowning, or is it drowning?

Mukasey was evasive. He didn't want to say something that would condemn illegal acts on the part of the administration. This was clear from the say-nothing follow up memo. However, the particular response that most people were carping about was correct. Waterboarding, as explaned by Senator Whitehouse, is not per se illegal torture. The description given was not an airtight legal definition. It would include applying what would normally be torture to willing volunteers for training demonstrations, and could possibly include some other applications short of legal torture.

On the other hand, in a vernacular rather than hypertechnical sense, waterboarding, traditionally referred to for hundreds of years as the water torture or the drowning torture, is pretty clearly torture when practiced in the form being discussed. I wish Mukasey had been asked whether the rack, the iron maiden, branding irons, thumbscrews, rape, mock execution, the capucha, flaying, electric shocks, mutilation, or burning were torture. He would have given either legalistic "that depends" answers for those too, which would beg for some elicidation, or not, which would beg the question of why his answer for the drowning torture was different. Either way, you'd put him on the spot.

The definition of waterboarding as a "interrogation technique" is misleading. Traditionally, torture has been practiced not as a means of interrogation specifically, but as a more general form of coersion or punishment. It has been used to force religious recantations or conversions, solicit information, or terrorize a population as a form of collective punishment or deterrence. This was supposedly Dick Cheney's rationale for using torture: not to get information, but to deter people who might not fear death or imprisonment from assisting al Qaeda. Such use of waterboarding is illegal because it fits the definition of terrorism (except in domestic law, wherein actions practiced by the United States against its enemies are excluded from the definition).

NPR said yesterday that to drown was to die of suffocation by water. I could find no source for this. The definitions I found all just said that drowning was suffocation or asphixiation, not necessarily fatal. Waterboarding is drowning.

Is there a law against practices that are not torture but sound like torture? There should be. If one uses dental surgery without anesthetic, or uses a blowtorch, the damage to the image of the U.S. will come from the way that sounds, not whether it meets a technical definition of torture. Keep those things put away. Using them, or waterboarding, in a manner just short of torture, would have may of the negatives of the real thing. And just as little benefit.

Torture is almost always counterproductive and ineffective. It is not without effects, though, and some people want to achieve those effects for their own sake: terror, coersion, and yes, you can get some information. You can pick up tiny clues even from confabulated stories. Is there ever an occasion where torture is the best or only way to get information? I find that highly unlikely. So unlikely, that this is a good place just to draw a hard line and not cross it.

She is Zuul: hear her roar!

A few days ago, something brought to mind the famous quote from the 1984 blockbuster Ghostbusters:

Gozer the Traveller will come in one of the pre-chosen forms. During the rectification of the Vuldronaii the Traveller came as a very large and moving Torb. Then of course in the third reconciliation of the last of the Meketrex supplicants they chose a new form for him, that of a Sloar. Many Shubs and Zuuls knew what it was to be roasted in the depths of the Sloar that day I can tell you.

I couldn't remember it precisely, so I looked it up. Some are more into this than I am. (Try Googling Sloar or Sloarism!)

So this has been rolling around in my brain for a few days, something that you'd suspect would be a complete waste of brain. That may in fact be so. Still, some of the thoughts you get can be interesting.

Some context before I go on, for the non-Sloarists out there. Louis Tully, played by Rick Moranis, is the nebbishy accountant neighbor of Dana Barrett, played by Sigourney Weaver. Louis and Dana have each become possessed by the demonic spirits who pave the way for a malevalent Sumerian deity, Gozer, who is coming to purify humankind with fire. Louis is taken over by Vinz Clortho, the "Keymaster," and Dana by the "Gatekeeper." Their conjugal union will allow Gozer to take material form.

I had never caught it before, but the explanation of the Sloar also reveals something of the language of the spirit world. Possessed by the Gatekeeper, Dana says, "I am Zuul. I am the Gatekeeper." I had thought Zuul was a proper name, like Vinz Clortho, which I still assume is a proper name, or at least a title.

But look at this: "Many Shubs and Zuuls knew what it was to be roasted in the depths of the Sloar..." At first, it made no sense. Zuul again? Is it a name or a noun? Then I got it. Shub=Man, Zuul=Woman. Dana, translated, says, "I am Woman. I am the Gatekeeper."

It's kinda cool. Like triangulating on the meaning of "gulliver" (supposing you are unfamiliar with the Russian "golova") in A Clockwork Orange as recommended in the author's afterword (one is kicked in the gulliver; when a beer is later observed to have a gulliver on it, it becomes clear that gulliver means "head").

Maybe it's still a waste of brain. But it was cool to figure out something, even if it was something useless.