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30. May 2010

Cruel and unusual punishment: tort reform and dismantling the ghetto lottery

Filed under: philosophy,politics — admin @ 15:08

The LORD abhors dishonest scales,
but accurate weights are his delight
.” -Proverbs 11:1

Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly.” -Leviticus 19:15

Americans tend to take a pretty strong stance against cruel and unusual punishment, having been a colony governed by barbaric England.   But it’s interesting to note that while our system of justice prohibits reckless physical revenge, those suffering at the hands of greedy lawyers can be subject to whatever economic penalty an empathetic judge or jury desires.

For instance, a woman filed a discrimination lawsuit against NASCAR, worth $225 million, and she got her money.  Lawyers can also prowl nursing homes looking for clients with vague stories about “abuse.”  Allbusiness.com reports that lawyers in Florida were able to find clients in nursing homes after an active search, and took home half of their clients’ individual $750,000 payouts.  A young woman’s family once sued Honda for $65 million after she drank herself into a stupor, backed her car into a lake, and drowned because she couldn’t unbuckle her seatbelt.  The jury awarded the money, although an appeals court (luckily) threw the case out later.

In the case of discrimination lawsuits, companies like McDonalds have been sued for $10 million, simply because one manager at one of their franchises asked American Muslim ladies to not wear their hijabs while at work.  In an interesting twist, that particular McDonalds branch is one of two American McDonalds restaurants which actually caters to the Muslim community, selling halal food.

As far as personal injury lawsuits are concerned, Americans have even less regard for the defendants…especially when the defendants are the public.   One woman sued the city of New York because she survived a suicide attempt on the subway’s tracks.  She was awarded $14.1 million.  Another man, this time less suicidal and more drunk, fell on to the tracks and lost his arm for a prize of $9.3 million.

The American Medical Association also reports that frivolous lawsuits have impacted the way doctors treat their patients, leading doctors to either order unnecessary treatments or opting out of providing care to those in serious need. And depending upon how you appear to your doctor, they may avoid necessary surgeries to avoid complications, or even avoid you if you have complex medical problems.  As one can see, litigious people affect not only businesses, but also those who are truly suffering.

Sometimes the lawsuits are so ridiculous, they’re thrown out of court… but oftentimes not before dragging a business into bankruptcy.  A Virginia judge once sued a dry cleaner for $65 million after they lost his pants, and although the lawsuit failed, the dry cleaner went out of business due to legal fees. 

As you might be thinking right now, this isn’t fulfilling the purpose of a justice system.  While Americans don’t tolerate boiling traitors in oil, we do support a legal system which can and does reward “sufferers” exorbitantly, by burdening others beyond reasonable means.

This leads us to wonder: why can people sue for such ridiculous amounts of money, for ridiculous reasons, and why do they win?  And if they lose, why do they not pay lawyers’ fees?  In the United States of America, lawsuits cost our businesses over 865$ billion dollars a year (not million), which is almost 1/14th of our entire economy.  Furthermore, MSNBC reports that job bias claims–which Obama’s administration purposely supports–have seen an unprecedented rise since our economic downturn, reaching record numbers.  And these lawsuits can reward unfair amounts of money, you can be sued for any reason, you can still go bankrupt if you successfully defend yourself, and people are more likely to sue when they don’t have a job.  Americans, this is your ghetto lottery.

From what I can tell, one major problem with our legal system is that we’ve gone from punishing physical harm to punishing mental abuse, a change which completely annihilates objective standards, while ensuring that feelings of vengeance are inappropriately satiated.  To be sure, a truly fair system of justice never rewards a victim according to how they feel.  This kind of attention to emotional well-being strips any sense of consistency–and equality–from our legal system, dispensing justice according to how judges and juries feel about their plaintiffs (or rather, how skilled plaintiffs and lawyers are at making juries feel a certain way), instead of according to the physical actions which could be judged equally and with restraint.

Furthermore, while true justice abandons empathy and emotional vengeance for objective legal standards and retributionary limits, it also rightly seeks to punish the offender, not all involved in a corporate entity.  To be sure, when a company loses a multi-million dollar lawsuit for one employee’s racial slur, the offending employee isn’t the only one who suffers.  Rather, the financial drain on the company can send many into poverty, harming clients, the families of those who become unemployed, and eventually the health of the economy as well.  As one might guess, making lawyers rich isn’t helping our economic downturn, since lawyers neither create nor grow anything other than law firms and more laws.  The entire payout isn’t even received by the plaintiff, either, since a good lawyer can cost you 40% of your settlement.

Finally, emotional damage cannot necessarily be quantified, since no one can be sure exactly how the plaintiff feels, or how to calculate suffering in dollars.  Due to the incalculable nature of emotions, defendants can be forced into paying exorbitant amounts of money, and they don’t have protection under our eighth amendment.  But in a constitutional sense, one would think that losing your entire company over an employee’s slur would be “cruel and unusual punishment”. 

So we must ask ourselves: is the defendant exempt from constitutional protection because the jury will not be inflicting physical harm upon him?  If this is the case, and the emotional or economic suffering resulting from a lawsuit do not qualify for protection under our eighth amendment, that means no amount of emotional or economic damage can ever be quantified as cruel punishment, which means the amount of emotional suffering cannot be arbitrarily quantified in a court of law.  If this is so, then the plaintiff should be held under the same rules: neither emotional damage nor the reward for it should be quantified.  If we are to be just, both the plaintiff and defendant must be protected under the same philosophical foundation: we must judge according to action, not according to emotional status.

And furthermore, if our judicial system currently takes empathy into serious account, then sending two different people to the same jail for the same crime is unfair, considering that they may suffer emotional damage unequally.  As another example, two criminal offenders may be given a parole officer, but they will feel the shame of reporting to him very differently.  In short, a morally upright system of justice does not consider individual feelings: only objective, visible, measurable action.  This is why Lady Justice has a blindfold: although the human mind may possess the capability for empathy, we must understand that the perception of common emotional content is merely illusional.  We cannot actually know if we feel what others feel.

Fortunately for us, a few solutions are available.

First off, the Bible sets a one-fifth standard for any sort of wrong-doing, meaning that if you were to steal someone’s car, you would have to restore their car to them, and then pay them one-fifth of the car’s total value.  This rewards any suffering caused by the loss of property, and punishes offenders equally, without any respect to subjective emotional arguments.  Because a one-fifth standard exists, excessive payouts are limited only according to the amount damaged.  No lawyers, no complaints.

Second, if we are not willing to completely abandon all anti-discrimination legislation, then we must ensure that companies are protected from frivolous discrimination lawsuits.  We need to ensure that a company can only be sued under discrimination laws if a person of authority engages in an illegal discriminatory action.  We must not allow lawsuits over hirelings, or allow franchises to be sued over their individual branches.

Third, we need a loser-pays system.  If you sue someone and you lose, you need to pay their legal fees.

Fourth, we need to repeal the 14th Amendment.  Before the 14th Amendment was instituted, the Bill of Rights only applied to the federal government, which allowed states to govern themselves according to their respective bills of rights.  If we repeal the 14th Amendment, states can ban all television commercials for lawyers and class-action lawsuits, a serious and immoral drain on our economy.

Fifth, we must ensure that suing people won’t make you rich, but we need to protect consumers from the dangers of companies who would rather pay lawsuits than recall dangerous products.  As a balancing measure, have your state place a cap on rewards to the defendant, so that any punitive damages over that amount would go to a worthy cause, like school vouchers or funds for infrastructure repair (dams, bridges, etc).  As an example, instead of a Los Angeles judge awarding 1.2 BILLION dollars to a family burnt by their car, the payout to the family would cover their future medical bills related to the incident, and be supplemented with a personal payout limit of $250,000.  Any of the excess money GM had to pay would go toward our infrastructure, so that–in the event that GM was wrong–GM wouldn’t keep their defective cars on the market, and others won’t sue just to make money.

Sixth, we need to ensure that people are not sued for what another person does with their product.  A store should never be sued for selling a gun (if they do it legally), and Caterpillar shouldn’t be sued for selling bulldozers to Israel.  In short, if you want to sue the person who shot you, sue them.  If you want to sue Israel for bulldozing homes, sue Israel.  But it should be easier for juries and judges to throw cases out which hold a third uninvolved party liable.

In short, this is a serious problem, and it needs to be addressed.  Not only is our legal system unfair, but our economy is already in shambles without another 14th of it going to lawyers, so please: take this into serious consideration.  Especially since the next person who could be affected by a frivolous lawsuit may be you.

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