Coyote Blog

I got a notice in my email that I was potentially a member of a class action against LinkedIn.  What is the case?

The Action challenges LinkedIn's use of a service called Add Connections to grow its member base. Add Connections allows LinkedIn members to import contacts from their external email accounts and email connection invitations to one or more of those contacts inviting them to connect on LinkedIn. If a connection invitation is not accepted within a certain period of time, up to two "reminder emails" are sent reminding the recipient that the connection invitation is pending. The Court found that members consented to importing their contacts and sending the connection invitation, but did not find that members consented to LinkedIn sending the two reminder emails [plaintiffs seem to have other grievances but this is the only one they say the court validated].

You have got to be kidding me.  How much time and money has been spent on this stupidity?

So I wanted to tell them to go screw themselves, and that this was not done in my name and I want nothing to do with it.  Of course there are simple web forms for joining the class and asking for payment, but to be excluded one has to follow a series of detailed instructions and send a snail mail.  Apparently if I do nothing I am part of this fraud whether I want to be or not.  I particularly like the last line of the opt-out instructions (FAQ #9)

This request must include the case number of the Action (Case No. 5:13-CV-04303-LHK), your name, address, email address, phone number and signature, and a statement that you wish to be excluded from the Settlement Class.  If the exclusion request does not include all of this information, or if it is sent to an address other than the above, or if it is not postmarked within the time specified, it will be invalid, and you will remain a member of the Settlement Class and be bound as a Class Member by the Settlement Agreement, if approved.  “Mass” or “class” opt-outs purporting to be made on behalf of multiple persons or classes of persons shall not be allowed.

So mass torts purporting to be made on behalf of a class of persons without even consulting them are A-OK, but mass opt-outs from the class are not allowed.

Postscript:  At first I thought the opt-out headache was the plaintiff's attorney trying to protect their fees, but their fees seem set.  In retrospect, my guess is the difficult opt-out comes from the defense, because opting out leaves one eligible to sue again and having settled this one, I am sure LinkedIn does not want a second class trying to take a second bite of the apple.

Followup #2:  Engadget's reaction to the case:  Oh look, free money!

And the sum is likely to be small, though LinkedIn promised to increase the total amount by $750,000 if individual payouts are less than $10. Still, money is money, so if you're willing to swear that the company spammed folks on your behalf, you can apply for compensation here.

I do not know this author's politics, but I can say from personal experience that the majority of the most breathtakingly amoral statements about money I have heard in real life (ie excluding cartoon lines written by Hollywood for business people) have come from Progressives.

Yes, people write that sort of headline all the time.  But in this case, I know.  In my novel BMOC, I pondered for quite a while trying to make up outrageously lame torts that ignored the true guilty parties and instead targeted deep pockets only tangentially connected to the harm or loss.  But nothing I made up, which I thought to be over the top, beats this one from reality.  Via Walter Olson, of course:

Prison inmate orders attack on guard at guard’s home in Bishopville, South Carolina. Surviving guard Robert Johnson and wife “did not, however, sue the typical defendants – i.e., the shooter or any prison inmate or employee. Rather, the Johnsons sued several cellular phone service providers and owners of cell phone towers.

Why?  Because they have the most money of anyone involved.  Of course, that is not the logic in the legal briefs.  Apparently, gasp, the criminals made use of cell phones to plan the crime and for some odd reason the cell phone companies were not monitoring every second of every single call on their networks and failed to prevent the crime.

Local Conservative Greg Patterson blames the death of several sex workers in Detroit on the Backpage, because the killer may have targeted them based on their ads in that periodical.

The killers are the ones who should be held responsible, but what about parties whose negligent actions facilitate the killing?  How about the example of a school with poor lighting, or the business with lots of bushes in which bad guys can hide?  There are plenty of cases that show the property owner would be liable for the intentional torts of others.

So New Times knows that Adult ads are used by bad guys...even to the point of murder.  Craigslist stopped accepting these ads after a similar incident and New Times picked up the business...at a considrable profit.  So can they be held accountable for the deaths in Detroit?  I would argue that they can be.  What about future deaths?  What happens if New Times continues to accept adult advertising and someone else gets killed?  Actionable?  I would say yes.

This is exactly the sort of spurious liability logic Conservatives tend to mock, except of course when it involves a target it does not like.  In this case free market Conservatives really hate Backpage for accepting freely placed ads for free exchange involving consensual sex.  I responded in the comments:

Why do you cast so far afield for an analogy in your third to last paragraph [the one above about schools with poor lighting]? Why not take a directly parallel example - what if some killer were stalking Starbucks barristas whose work places he identified through ads in the Republic or via Google Maps? Would you really run around in circles blaming Google? This is like saying that a serial killer is facilitated by the phone companies because they publish the phone book the killer used.

We are talking about ads placed via free exchange for consensual sex. Yes, in our bizarre society, Conservatives who nominally support all other types of free exchange have had this one sort banned. But it is ironically the very fact that this sort of consensual commerce is illegal that makes this work so dangerous. Escorts/hookers are vulnerable to abuse, crime, fraud etc. precisely because they have less ability to access the legal system for redress.

If you want to discuss who facilitated the death of these women, let's talk about those who drove their profession underground.

Via the NY Times, no flaws found with Toyota accelerators

The Obama administration's investigation intoToyota safety problems found no electronic flaws to account for reports of sudden, unintentional acceleration and other safety problems. Government investigators said Tuesday the only known cause of the problems are mechanical defects that were fixed in previous recalls.

The Transportation Department, assisted by engineers withNASA, said its 10-month study of Toyota vehicles concluded there was no electronic cause of unintended high-speed acceleration in Toyotas. The study, which was launched at the request of Congress, responded to consumer complaints that flawed electronics could be the culprit behind Toyota's spate of recalls.

"We feel that Toyota vehicles are safe to drive," said Transportation Secretary Ray LaHood.

Officials with the National Highway Traffic Safety Administration said they reviewed consumer complaints and warranty data in detail and found that many of the complaints involved cases in which the vehicle accelerated after it was stationary or at very low speeds.

NHTSA Deputy Administrator Ron Medford said that in many cases when a driver complained that the brakes were ineffective, the most likely cause was "pedal misapplication," in which the driver stepped on the accelerator instead of the brakes.

As Walter Olson writes of the original overblown brouhaha

Did it make a difference that the federal government has taken a proprietor's interest in major Toyota competitors GM and Chrysler, or that a former trial lawyer lobbyist heads the National Highway Traffic Safety Administration?

I had more back in July (and here, where I observe that scientific data on breast implant safety did nothing to stop the torts, and is unlikely to do so in this case).  I questioned the US Government's conflict of interest in this matter way back in January of 2010.

By the way, anyone want to reopen the case on that guy in LA with the runaway Prius -- I thought it was concocted at the time (I called him balloon boy in a Prius) and am doubly sure now.  How is what he did, in retrospect, and different from leading the police on a high-speed chase?

The media is portraying the $20 billion BP spill fund as a result of tough talk from the President.  I think it was a lifeline that BP grabbed with great relish (so does the stock market, as their stock price has risen slightly in the day and a half since).

BP faces absolute bankruptcy from the torts resulting form this current spill, along with some criminal charges.  Its best hope is to negotiate a deal, Chicago-style, with the US government.  In exchange for a cash fund that will sound really large in the press but likely will fall short of actual claims, Congress will pass a law limiting its liability to just+ the settlement fund.  The public justification will be that the settlement fund will provide much quicker and more efficient compensation to victims -- which might even be true.

If one wants a model, just look at the tobacco settlement.  While they vilified them, the government in fact made tobacco companies their partners.  Since the settlement, the government has in fact stepped in to protect the large tobacco companies from competition and price erosion, in large part to protect parties to the settlement from loss of market share to parties who are not on the hook to pay out large sums to the government.  By the way, note that the vast majority of the tobacco settlement money did not go to its stated purpose of tobacco education and health care costs, but into the general funds to support politicians' whims.

This is how things work in the corporate state (and, I suppose, in organized crime).  Once you have an entity like BP vulnerable and under your control, the last thing you want is for them to die.  You want to milk them for years, both for cash and political support, the quid pro quo for being kept alive.

Update: OK, it seems I can't be original.  Others are thinking this too

One aspect of the recent debate about the Supreme Court's Citizen's United decision that really irritates me is the notion, propounded by the NY Times among others, that corporations and the individuals assembled in them do not have free speech rights because corporations are "state-created entities."

This is wildly untrue, or alternatively, if you accept the logic, then nearly every aspect of our lives is state-created.  Take your pick.  Basically, the argument is that because the government has set the rules for corporate incorporation, and that these incorporations require state approval, that makes corporate entities "state-created."  But corporations are nothing more than a structure by which people can assemble and aggregate their capital and share ownership of an enterprise that employs that capital.  If government incorporation law did not exist, individuals still would have the incentive to assemble in some sort of entity.

I don't know of anything in the corporate structure that could not be duplicated with contract terms.  People point to the liability limitation as some sort of government gift to the corporate world, but that could easily be written in to every contract of, say, a partnership  (certain torts are an exception I would have to think about).  Vendors might choose not to accept such contracts, preferring to be able to pierce the partnership to go after individual owners to settle debts, but that choice exists today.  I have many, many vendor contracts in my corporation, and nearly all of my bank loans, that require the personal guarantee of all the owners, effectively waiving the liability limitation for those transactions.

My point, though, is that corporate forms have evolved as they are because that is what the sum of investors and business people were working towards on their own, and government merely enshrined these forms into law.  In fact, this basic rules-setting of the contracts playing field is one of the few arguably useful things government has done.  If we allow government rules-setting over certain activities to be the test of whether it can further restrict our Constitutional rights, then nearly every aspect of our lives would be subject to such restrictions.

At its heart, this is the classic "heads I win, tails you lose" argument of statists.  They claim that individuals must petition the state to register their corporation and license their business, and then use the fact of these required registrations to argue that the business is a "state-created entity" and that individuals give up their ability to exercise their rights when assembled into these entities.  By the same logic, the fact that every commercial transaction is subject to license and taxation by the state would make our every transaction a "government-created exchange."  Think I am exaggerating?  Just look at this from our Arizona state web site:

The Arizona transaction privilege tax is commonly referred to as a sales tax; however, the tax is on the privilege of doing business in Arizona and is not a true sales tax. Although the transaction privilege tax is usually passed on to the consumer, it is actually a tax on the vendor.

Rights, like the ability of free exchange between individuals, supposedly can't be revoked, but privileges can.   Thus the name.   For folks who treasure individual liberty, we have already lost the battle when we allow the state this kind of language.

Anyway, I feel like I am having a failure of eloquence over this issue.  Ilya Somin got me started thinking about these issues, so I will turn it over to him here.

Third, it's important to consider what is meant by "state-created entity." If the term refers only to institutions that literally would not exist absent state authorization, it does not accurately characterize many, perhaps most corporations. If the federal government passed a statute abolishing corporate status tomorrow, most actual corporations would still exist and still continue to engage in the same business or nonprofit activities. They just would do so under different and perhaps less efficient legal rules (maybe as LLCs, partnerships, or sole proprietorships). But they wouldn't all just collapse or go away. There would still be a demand for most of the products produced by corporations.

If "state-created entity" doesn't refer to the mere existence of organizations currently defined as corporations but to the particular bundle of legal rights currently attached to the corporate form, then it turns out that virtually all other organizations are state-created entities as well. Universities, schools, charities, churches, political parties, partnerships, sole proprietorships, and many other private organizations all have official definitions under state and federal law. And all have special government-created privileges and obligations that don't apply to other types of organizations.

Even individual citizens might be considered "state-created" entities under this logic. After all, the status of "citizen" is a government-created legal entitlement that carries various rights and privileges, many of which the government could alter by legislation, just as it can with those of corporations (e.g. "” the right to receive Social Security benefits, which the Supreme Court has ruled can be altered by legislation any time Congress wants). In that sense, "citizens" are no less "state-created" entities than corporations are.

By the way, in case I was not careful with my language, I offer the same proviso as does Somin:

I should clarify that in this post, as before, I'm not arguing that corporations themselves are "persons" with constitutional rights. Rather, I'm asserting that their owners and employees are such persons and that that status enables them to use corporations to exercise their constitutional rights. Similarly, partnerships, universities, schools, and sole proprietorships aren't people either. But people can use them to exercise their constitutional rights, and the government can't forbid it on the sole ground that they are using assets assets assigned to "state-created entities." This distinction was unfortunately obscured in the current post by my shorthand references to "corporations'" rights. I only used that terminology because it's cumbersome to always write something like "people exercising their constitutional rights through corporations."

It is amazing to me that there can be numerous health care plans in Congress plus a jillion speeches on the topic by the President and not once does anyone mention "torts."  Now, I am not one to ascribe all cost problems in the medical field to defensive medicine and tort settlements.  Buthey t certainly are a factor.  It is just stunning that a President can stand up and talk numerous times about "unnecessary tests and procedures" and ascribe all of these to some weird profit motive by the doctors - weird because generally, the doctor gets no extra revenue from these tests, so somehow he or she is motivated by the profits of a third party lab.

But I think the rest of us understand that American tort law, which allows juries to make multi-million dollar judgements based on emotions and empathy rather than facts and true liability, has at least a share of the blame.   Not just the settlements, but the steps doctors go through to try to protect themselves from frivolous suits down the road.  Here are two interesting stories along these lines.  The first from Carpe Diem:

Zurich University Hospital has stopped treating North American "medical tourists," fearing million-dollar claims from litigious patients if operations go wrong. Hospitals in canton Valais have also adopted measures to protect themselves against visitors from the United States, Canada and Britain.

"The directive applies only to patients from the US and Canada who come to Zurich for elective, non-essential health treatments," said Zurich University Hospital spokeswoman Petra Seeburger.

"It is not because treatment is not financed; it is because of different legal systems." In a statement the hospital said it was "not prepared to risk astronomical damages or a massive increase in premiums." Seeburger emphasised that the restrictions only affected people not domiciled in Switzerland.

Apologies to Mark Perry for quoting his whole post, but if you are not reading Mark Perry, you should be.  The second example comes from Overlawyered:

Oh, I miss the days when you got a radiology report that said, "fracture right 3rd rib, no pneumothorax". Because of frivolous lawsuits radiologists have learned to be vague, noncommittal and to pass the buck of possible litigation. So now you get a 2 page report that says "linear lucency in right 3rd rib, clinical correlation recommended, underinflated lung fields cannot exclude underlying interstitial disease and or masses. CT recommended for further evaluation, if condition warrants." along with several other paragraphs of lawyer imposed legalmedspeak"¦.

I used to write a lot about junk science in civil cases.  I have never really liked the idea of limitations on liability awards as a solution for nutty civil rulings -- after all, how can Congress know in advance exactly what real damages will arise, and why should my ability to recover real damages be capped?

I always have felt that such solutions were beside the point, that what tort law needed was:

• Better immunization against junk science
• A rollback of the flawed notion that deep pockets are automatically liable, regardless of their actions, combined with some acknowledgment of individual responsibility
• Protection of dependents from nuisance suits and mass torts, both of which derive their power from the cost of defense rather than the facts of the case, forcing the innocent to settle just to avoid these defense costs.

I always had naively thought that the junk science issues were mainly limited to civil courts, and that criminal courts, with their much stronger protections against false convictions, did not really have these problems.

The more I read Radley Balko, though, the more depressed I get about innocent people sitting in jail as the result of really flawed evidence.  The most recent example:

Last weekend, we looked at the case of Bill Dillon, the Brevard County resident imprisoned for 27 years before DNA tests set him free...

At least two other men suffered the same fate "” and another shared link: a dog.

Not just any dog. A wonder dog helped convict all three men: a German shepherd named Harass II, who wowed juries with his amazing ability to place suspects at the scenes of crimes.

Harass could supposedly do things no other dog could: tracking scents months later and even across water, according to his handler, John Preston.

Via Overlawyered:

How "safety" news gets shaped: a litigation consultant "at the request of trial lawyers "¦ combed through hundreds of coroner's reports and media accounts" and before long ABC had an alarming story to run.

There is a symbiosis between tort lawyers (who want to inflame a jury into giving large awards, or better yet create a mass tort), the media (who want scare stories to boost circulation) and government (populated with legislators just itching to ban or regulate something to show they "care").  Someone should write a book about that.

A while back, at our local libertarian discussion group, we spent an evening discussing centralization vs. decentralization of government, and whether one or the other better protects individual liberties. 

Many libertarians argue for decentralization.  The anarchists in the room will argue for the ultimate decentralization, all the way to the individual level, essentially voiding the concept of government altogether.  Others who are more amenable to some government argue for decentralization because it tends to allow for competition, with citizens voting with their feet and wallets for more favorable tax and regulatory regimes.

On the other hand, the US provides historical examples of the benefits of federalism in protecting individual rights.  Certainly the abolition of slavery and later of Jim Crow laws were a positive outcome from the feds, as are the enforcement of Bill of Rights protections on the states.  I would personally love to see a federal system like our own with all legislative power held as locally as possible, but with a federal government whose main purpose domestically was not taxation/regulation/legislation but instead enforcement of a more robust Bill of Rights and nullification of state and local law that violated protected individual freedoms.

Anyway, one topic related to decentralized authority was jury nullification.  Jury nullification is the ability for juries to rule on the law, rather than guilt or innocence.  An example might be "the jury thinks Joe is guilty of smoking pot, but we don't think smoking pot should be illegal, so we are going to let Joe go."  Most state law technically does not allow juries to rule on the law itself, but as a practical matter there is no way juries can be prevented from doing so  (Prosecutors really go non-linear over jury nullification -- I remember Patterico had a long series inveighing against it.)

Anyway, as you might imagine, the libertarians in the room mostly love jury nullification.  Despite being a good anarcho-capitalist, I disagreed. I understood that most of the examples people brought up did indeed demonstrate that jury nullification could be a tool for protecting individual rights.  However, I believe that nullification could equally be a tool of oppression.  For example, in criminal law, take the Enron-Skilling trial.  I am not saying this happened, but one could certainly imagine a properly inflamed jury saying "well, we don't think he is technically guilty beyond a reasonable doubt on the charges based on the evidence here in court, but he's rich and Enron failed and people lost money and we're pissed off, so we will find him guilty.  They would be saying "what he did was not a violation of the law, but it should be, so we are sending him to jail." This is just as much jury nullification as my previous example.

I don't think this kind of anti-individual-rights jury nullificatin happens often in criminal court, but I do think it is happening a lot in civil court.  In fact, I think one way you could summarize what is wrong with torts and litigation in this country is that we are seeing rampant jury nullification in favor of wealth redistribution.  Juries are ignoring the law, the facts of the case, and all reason for one and only one consideration:  "One guy in the room is rich, one guy is not, and I have a chance to take money from the rich guy and give it to the poor guy."  For while it may be hard in America to get 51% of the voters to support substantial increases in wealth distribution, smart lawyers like Peter Angelos and Jon Edwards have figured out that it is not that hard through voi dire to get at least seven or eight such votes in a room of twelve people.

Particularly if you are good at venue-shopping:

In Race, Poverty and American Tort Awards (and here),
Eric Helland and I show that tort awards increase strongly with county
poverty rates especially with minority poverty.  A 1% increase in black
poverty rates, for example, can increase tort awards by 3-10 percent
with a similar increase in Hispanic poverty rates.   Careful forum
shopping can easily raise awards by 50-100%.

Anthony Buzbee, a famed plaintiff's attorney, inadvertently let the
cat out of the bag recently when talking about Starr county in Texas.

"That venue probably adds about seventy-five percent to the value of
the case," he said. "You've got an injured Hispanic client, you've got
a completely Hispanic jury, and you've got an Hispanic judge. All
right. That's how it is."

In other parts of Texas, Buzbee went on, a plaintiff may have the
burden of showing "here's what the company did wrong, all right? But
when you're in Starr County, traditionally, you need to just show that
the guy was working, and he was hurt. And that's the hurdle: Just prove
that he wasn't hurt at Wal-Mart, buying something on his off time, and
traditionally, you win those cases."

The problem with letting juries write law in the jury room is that there are no Constitutional protections at all.  If they want to make the law, at least for that day, read that homeowners are liable for injuries suffered by burglars trying to break into their house, then that is what the law becomes, fair or not.  If they want to make the law read that drug companies shouldn't sell painkillers that have any risk at all, then that is what the law is, and the rest of us 300 million minus twelve people have to live with fewer choices for managing our migraines. 

Note to readers:  This post is sticky through 12/15.  There are new posts just below this one!

Welcome!  This year we are in the blogs ranked 1751-2500.  Please cast your vote for Coyote Blog here.  You can vote once per day!  For those new to the site, here is some of what I do here:

Real-life small business experiences:  Buying a company;  Working with the Department of Labor; Case Studies on the Minimum Wage;  What's on my Desk Today;  Getting an SBA Loan

Economics:  The myth of Zero-sum Economics; 60 second refutation of socialism; Business Relocation and the Prisoners Dilemma; Technocrats, government and disasters; Advice for the Reality-Based Community;  Roosevelt's NRA: America's Flirtation with Fascism; the Trade Deficit is not a Debt; A Challenge to Lou Dobbs;  In Praise of Robber Barons

Libertarian political commentary:  Respecting individual decision-making, The real implications of a Privacy Right, Technocrats get their comeuppance, A defense of Open Immigration, New Alien and Sedition laws, Conservatives, let your enemy speak, Liberals, let your enemy speak(and here), Iraq war, The Kelo decision,  

Climate Science:  The skeptical middle ground on warming; A skeptics guide to An Inconvenient Truth

Frustration with runaway torts:  Jackpot Litigation; Coyote vs. ACME

Camping (my business):  New American nomads;  This RV is just wrong

Attempts at humor: How to spot a dictatorship; Coyote's Law;  Making fun of the UN and the Internet;

Sports: The Baseball Closer Role is Nuts; I hate penalty kicks; Pre-season college football rankings are the most important

ACME Products:  Instant Girl; Ultimatum Gun; Earthquake Pills

How I Married Well:  My Wife, the Fashion Diva;  My Wife's Fashion Awards (and here)

Oh, and I promote my new novel, BMOC, a little bit.

Enjoy.

Both based on outside pressure (mostly from torts) and internal desire, universities are rapidly modeling themselves into mini-governments, really mini-super-nanny-states.  FIRE, the Foundation for Individual Rights in Education, observes of a recent gathering of University attorneys:

At one panel I attended, San Francisco lawyer Zachary Hutton explained
Williams v. Board of Regents, a recent case in which a University of
Georgia student alleged having been raped by two student-athletes while a third
student watched. The police charged the athletes with rape, and the university
decided not to conduct its own investigation until the criminal case was
resolved.

That turned out to be a mistake. The plaintiff then sued the university for
sexual harassment, and the 11th Circuit held this year that the university could
be liable because, by waiting to conduct an independent investigation until the
criminal case was resolved, it had exhibited deliberate indifference to the
alleged rape. "The court emphasized," Mr. Hutton told the college lawyers, "that
the pending criminal trial . . . did not affect the university's ability to
institute its own proceedings, and the criminal charges would not have prevented
future attacks while the charges were pending."

There are excellent reasons for the university not to conduct its own
investigation. For one thing, instead of police detectives and professional
prosecutors conducting the investigation, you are likely to get Campus Public
Safety and the Associate Dean for Student Affairs. How having inexperienced
college administrators and college safety officers conduct a rape investigation
is likely to benefit either the victim or the accused is beyond me. The
potential for violating the Fifth Amendment, damaging evidence, and coming to
wildly inaccurate conclusions is immense, and if any of these things were to
happen, the university would risk botching an important criminal case. Rape is a
serious crime; victims and the accused deserve better than college justice.

In some ways, this was even more illuminating of the drive to mini-nanny-statehood:

The most entertaining discussion I heard at the lawyers' convention
centered on what to do about facebook.com and myspace.com--how to prevent
slander, harassment and rumor-mongering on these online communities popular with
undergrads.

What these attorneys were talking about is wholesale regulation of online
speech. Slander is, of course, a tort, and engaging in slander or libel can get
a person sued. It's hard to see how or why a college should be involved in this,
though. If I libel someone online, it's the business of those affected, not the
college. As for harassment, one of its main characteristics is that the person
being harassed finds the harassing behavior hard to avoid. Unless the "harasser"
is hacking into the victim's MySpace page, it's hard to see how going to a
"harassing" website isn't completely avoidable. As for "rumor-mongering," horror
of horrors! Regulating that on a college campus will mean tripling the number of
administrators (and probably tuition), but I suppose no expense is too large to
make sure that everyone stays comfortable.

College campuses were probably among the first and most vociferous critics of GWB's various domestic surveillance programs.  Its interesting to see that while opposing such programs at the national level, they are crafting far more far-reaching speech monitoring and restriction programs on their own campuses:

The room was evenly divided: Some lawyers recommended ignoring the students' Web
sites unless something offensive was brought to administrators' attention, while
others suggested taking aggressive action....

By my calculations, if half the lawyers thought that "offensive" speech that is
reported should be punished, and half the lawyers thought that administrators
should spend their time cruising the websites and proactively stamping out
"offensive" speech, that leaves ZERO lawyers who believed that perhaps merely
"offensive" speech should be protected, as the First Amendment (at public
schools), or respect for fundamental freedoms (at all schools), requires.

Marginal Revolution links to a list of the most corrupt states, measured by the number of government corruption convictions per capita.  I bet you can come pretty close to the top three without even looking.  Here they are:

1. Alaska.  For all those who want to believe that pork is unrelated to corruption, look no further than the king of pork itself, Alaska, which also turns out to be the king of government corruption.  Kudos to Arizona Congressman Jeff Flake, who is about the only one brave enough in that lost and floundering body to connect the dots between Abramoff, cash-filled tuperware, corruption and pork.
2. Mississippi.  Who would have ever thought the state best known for being the #1 home of jackpot torts and the home state of the Senator who claims to be above the law would be a hotbed of corruption? 
3. Louisiana.  Probably the only surprise on the list, since one would expect the home state of Huey Long to be in first rather than third.  Heck, in 1991 the state got to choose between a wanna-be Nazi Klansman and a serially corrupt felon for Governor.  And God only knows where the money that should have been spent on building levees actually went.

Welcome!  This site is getting a lot of first-time readers this week from our guest-stint at Overlawyered.  For those new to the site, here is some of what I do:

Real-life small business experiences:  Buying a company;  Working with the Department of Labor; Case Studies on the Minimum Wage;  What's on my Desk Today; Getting an SBA Loan

Economics:  The myth of Zero-sum Economics; 60 second refutation of socialism; Business Relocation and the Prisoners Dilemma; Technocrats, government and disasters; Roosevelt's NRA: America's Flirtation with Fascism; Gasoline Supply and Demand; Hoping for Price Gouging; Peak Oil; In Praise of Robber Barons

Libertarian political commentary:  Respecting individual decision-making, The real implications of a Privacy Right, Technocrats get their comeuppance, A defense of Open Immigration, New Alien and Sedition laws, Opposing Special Rights for the Press, Iraq war, The Kelo decision, Free speech, Danger of Politics without Philosophy  

Frustration with runaway torts:  Jackpot Litigation; Coyote vs. ACME

Camping (my business):  New American nomads;  This RV is just wrong

Attempts at humor: How to spot a dictatorship; Coyote's Law;  Making fun of the UN and the Internet;

Sports: The Baseball Closer Role is Nuts

ACME Products:  Instant Girl; Ultimatum Gun; Earthquake Pills

How I Married Well:  My Wife, the Fashion Diva;  My Wife's Fashion Awards (and here)

Enjoy.

In a recent post, I started to develop the theory that people who are positive to neutral about the regulatory state may be so in part because they don't encounter it - e.g. an employee tends to be sheltered from the mind-numbing body of labor law that regulates his relationship with his employer because more efficient HR departments and payroll companies shelter people from this mess.

By the way, let me digress just one second on the nature of my blogging.  When I said above that it was a theory I started to develop in a post, this does not mean that I sat around for days, came up with the idea, and started to flesh out my well-oiled thinking on the topic in that post.  It means it occurred to me literally while I was typing my post, somewhere between paragraphs 3 and 4.  I use the act of blogging as a way to test-drive my thinking on certain topics, which puts you the reader in the position of something between a intellectual sounding board and a psychotherapist.  I actually spend my time trying to keep my business running -- my college roommate is the only one I know who gets paid to sit around and think deep thoughts.

Anyway, with that out of the way, I can return to the actual point of this post which is to point out that the same attitude of "not to know it is to love it" may well apply to torts and litigation.  All romantic and heroic as portrayed in the media (e.g. Erin Bronkovitch), torts as practiced in real-life seldom so heroic, either in their details or their outcomes.  Here is Bookslut wondering about her opposition to tort reform now that she has witnessed some silly lawsuits in her area of familiarity.  Overlawyered has background on the case in question/

Note to readers:  This post is sticky through 12/15.  There are new posts just below this one!

Welcome!  This year we are in the blogs ranked 1000-1750, which to the un-initiated might seem like an also-ran category until you understand that last year we were in the "ranked 8751+" category, so this is a real step up!  Anyway, if you are a regular reader, you can vote once a day here.  For those new to the site, here is some of what I do here:

Real-life small business experiences:  Buying a company;  Working with the Department of Labor; Case Studies on the Minimum Wage;  What's on my Desk Today; Getting an SBA Loan

Economics:  The myth of Zero-sum Economics; 60 second refutation of socialism; Business Relocation and the Prisoners Dilemma; Technocrats, government and disasters; Roosevelt's NRA: America's Flirtation with Fascism; Gasoline Supply and Demand; Hoping for Price Gouging; Peak Oil; In Praise of Robber Barons

Libertarian political commentary:  Respecting individual decision-making, The real implications of a Privacy Right, Technocrats get their comeuppance, A defense of Open Immigration, New Alien and Sedition laws, Opposing Special Rights for the Press, Iraq war, The Kelo decision, Free speech, Danger of Politics without Philosophy  

Frustration with runaway torts:  Jackpot Litigation; Coyote vs. ACME

Camping (my business):  New American nomads;  This RV is just wrong

Attempts at humor: How to spot a dictatorship; Coyote's Law;  Making fun of the UN and the Internet;

Sports: The Baseball Closer Role is Nuts

ACME Products:  Instant Girl; Ultimatum Gun; Earthquake Pills

How I Married Well:  My Wife, the Fashion Diva;  My Wife's Fashion Awards (and here)

Enjoy.

I resisted blogging about it when a woman claimed to have found a human finger in her Wendy's chili.

I was tempted to blog when it was discovered that the woman had a suspicious history of torts against other restaurants and public companies.

I still held out when authorities began searching the woman's home, supposedly to find evidence that she put the finger in herself, perhaps from her dead grandmother's hand.

However, I just can resist this new addition to the story:

A woman who lost part of her finger to a leopard in Nevada thinks it
somehow ended up in a bowl of chili in a California Wendy's.

Her
lawyer says Sandy Allman wants to participate in any DNA test on the
finger. The lawyer says Allman last saw her digit packed in ice in a
Las Vegas emergency room. Doctors had told her it couldn't be
reattached.

The hospital says it can't account for the three-quarter-inch fingertip.

Las
Vegas resident Anna Ayala claimed she found an inch and a-half
fingertip in her chili about a month after the leopard attack.

Update: Unfortunately, authories are now leaning away from the leopard story.  Have they checked Roy Horn?

If you are coming from the "Best Business Blog" poll, welcome  (if you are a regular reader, you can vote for Coyote Blog here).  Here are some examples of our business blogging:

Real-life small business experiences:  Buying a company; Outsourcing to Your Customers;  Working with the Department of Labor;  A Primer on Workers Comp;  Dealing with Sales Taxes;  Services and Brands

Economics:  Taxes and Class Warfare; The Harvard MBA indicator;  Messed-up Pensions

Capitalist Philosophy: 60 Second Refutation of Socialism, While Sitting at the Beach;   Respecting Individual Decision-Making

Libertarian political commentary:  Post election wrap-up; Thoughts on Kyoto;  Fisking the NEA

Frustration with runaway torts:  Jackpot Litigation; Coyote vs. ACME;  Plenty More Here

Camping (my business):  New American nomads; This RV is just wrong

Attempts at humor:  Replacements for Dan Rather; My Manhood vs. the Pocket Door

Extending Occam's Razor: Meyer's Law

ACME Products:  Instant Girl; Ultimatum Gun; Earthquake Pills

Over the last two days, Phoenix put out an order to boil tap water before drinking and not to bathe or shower.  Many restaurants closed for the two day period, and many many people went out and loaded up on expensive bottled water.

What I found interesting was that through the whole "crisis", and now after the fact, Phoenix officials continued to say that they thought the water was safe, that they had not gotten any bad test results, but that people still shouldn't use the water "as a precaution".

Given the current state of liability and torts, I probably would have done the same in their shoes, but is this really the world we want?  There are costs to shutting off water in a city of 2 million plus people.  Shouldn't those costs be justified by some real risk? 

When I was an engineer, my job was often to rule on whether some condition was "safe".  Every day I had to make decisions like "should we shut this part of the plant down, or can we keep running it safely".  Certainly we wanted to err on the side of safety, but ruling every little concern as cause for shutdown would have caused the plant to be shut down almost all the time.  In that job, I had to take responsibility and make a decision, balancing risks and costs.  People want to say that shutting the plant (or the water system) at every hint of a problem is the "responsible" thing to do -- but in fact it is just the opposite.  It is an avoidance, both of decision-making and responsibility.

Unfortunately, no one wants to make such decisions anymore.  My wife's mammogram had something on it the doctor said he was 100% sure was just an artifact of the photography, but to cover his butt he said he had to get her to go have a biopsy (painful, expensive, and time-consuming) which was of course negative.  We are loading the economy down with risk-defense costs, an invisible tax that is already hammering the medical field.

But beyond just the costs, at what point does this hair-trigger defensive posture lead to a chicken-little syndrome where no one pays attention to warnings any more?  I know that the next time we get a warning about Phoenix water, I will be much less likely to be careful, because I remember that the last time nothing was really wrong with the water.  How many people pay attention to homeland security alerts any more?  Do you even bother to read warning labels any more, on the off chance it is a useful warning and not a "this toaster should not be used as a water ski" type warning?

There are legitimate concerns that need to be addressed in putting together tort reform legislation; and there are shortcomings, as usual, in the GWB proposals (see below).  This, however, via Kevin Drum, is grasping at straws by tort reform's opponents.  Drum cites a recent UC San Diego Study described here that shows that there are a disproportionate number of medication errors in the first few days of the month.  The study claims that this is due to pharmacists being overworked and making mistakes because they claim poor people all rush to buy their drugs after their government checks arrive.

Kevin Drum cites this study as evidence that malpractice tort reform is misguided, because, as he puts it "one of the causes of malpractice lawsuits is "” surprise! "” malpractice".

OK, its hard to know where to start.  Though I am a supporter of tort reform, I would probably not have gotten worked up enough to bother to post.  However, this is another example where science and "studies" are misunderstood and perverted in the media, which DOES tick me off enough to write.  Here goes:

• This study has nothing to do with medical malpractice!  The debate is around doctors and doctors getting driven out of business by their malpractice rates.  What do pharmacist mistakes have anything to do with the types of medical malpractice and medical malpractice insurance rates.  The departure of doctors from certain counties has nothing to do with pharmacy errors.
• Though the authors and Mr. Drum wish to imply that all the medication mistakes measured are by medical professionals, the study in fact includes:

"wrong drug given or taken," or "accidental overdose of drug," or "drug taken inadvertently."

Note that of the four categories of mistakes above and included in the numbers (wrong drug given, wrong drug taken, accidental overdose, and drug taken inadvertently), three of the four are reasonably the fault of the individual taking the drug, not the pharmacist.  However, since most supporters of the current tort system tend to reject the notion individual responsibility, I guess this little issue was ignored. 

• The authors never have anything to say about Mr. Drum's point, ie they do not correlate these deaths with actual malpractice suits, so it is impossible to actually make Mr. Drum's point in the first paragraph.  The best evidence I have seen is equivocal - it says that a large number of lawsuits are baloney, but that a large number of true malpractice victims go uncompensated.
• The authors actually have no evidence, other than their supposition, that these deaths are due to pharmacists being overworked.  They did not do any research into the specific cases involved - they just surveyed notoriously inaccurate death certificates.  In fact, though it may be in the actual report, I don't see any evidence that demand actually increases or that pharmacists are indeed overworked the first few days of the month - they just seem to hypothesize it without proof.  And, if there really is more work load the first few days of the month, they never mention any data on staffing - presumably if there is such a trend, pharmacies may actually staff up for it, which would also defeat their supposition.  My business gets more traffic on certain days of the year and we staff for it.

OK, while we are on the topic of medical tort reform, I will offer up a couple of more thoughts beyond just the silly use of this study:

• No one denies that some malpractice torts are from real malpractice.  Wrong legs ARE cut off, etc.  No one wants to protect people who are guilty of obvious malpractice.
• The issue is less with the existence of medical torts but with their enormous escalation in the last 10-20 years.  To argue that malpractice torts mostly result from real malpractice, you have to argue that the incidence of real malpractice has gone up dramatically over the last 20 years.  That may be, given the great increase in complexity of medicine, but I doubt it is the entire explanation

As usual, part of the problem in this argument is that GWB and his minions suck at getting a message out that can drive a consensus.  Here is my alternate message on medical malpractice:

The system today is broken for two reasons: 

• First, bad doctors and real malpractice is not punished strongly enough, and some of the worst practitioners go on to hurt more and more people.   Insurance today spreads the cost of bad medicine to all doctors, reducing the negative impact on the worst.  In addition, insurance premiums and torts are a poor substitute for better discipline and penalty systems for bad medicine
• Second, too many good doctors are punished with suits because they had bad outcomes from good medicine.  Sometimes babies are born with birth defects, sometimes medications that help millions have unpredictably bad side effects for a few unlucky people, and sometimes people die and there is nothing that can be done.

More important than damage caps, both for truly injured patients and good doctors, is to bring scientific sanity to the system, and to make sure that bad medicine, not bad outcomes, are punished.

By the way, in a previous post Mr. Drum said that there is no cost to "frivolous" suits since they don't go to court.  This is quite wrong:

• I am not in medicine, but I am in a public contact business that gets some slip and fall suits, but I assure you that your insurance premiums can go up substantially even for suits that don't go to trial
• You still have to have a lawyer at $400 or so an hour to defend against a frivolous suit.  You can't walk in the first day and say, "hey judge, this is BS, let's drop it".  I have spent tens of thousands of dollars before frivolous suits against me get dropped
• Frivolous suits do go to trial and can win.  Just think McDonald's coffee.

And yes, I have had experience with frivolous suits.  In one case, a person who claims to have stepped on a nail head protruding from a board in our campground sued us for sexual dysfunction.  That case is still active more than 3 years later!  In another case, a person claimed to have hurt her knee falling on some steps.  Excluding the issue of why I am at fault if she fell down a perfectly safe set of steps, we eventually discovered that she had hurt her knee several weeks earlier, had no medical insurance, and was visiting a number of local businesses making the same claim to try to get someone to pay for an operation.

So please, don't lecture me on frivolous suits.  When Mr. Drum has to pay $400 an hour to defend a suit from someone who got an infected paper cut while reading his article in a magazine, then he can talk about why frivolous suits are OK.  However, he is right in this respect - I don't think the answer is capping damages.  The answer is having a way to defeat these things, to drop them out of the system quickly and inexpensively.  To have some kind of sanity filter.  This would help those of us subject to BS suits, and would help the truly injured get to trial faster.

Welcome!  Thanks to Elise Bauer for ways to make this post sticky in TypePad.  Please, have a look around.  Here are some examples of what I do here:

Real-life small business experiences:  Buying a company;  Working with the Department of Labor

Economics:  Taxes and Class Warfare;  The Harvard MBA indicator

Libertarian political commentary:  Post election wrap-up;  Thougts on Kyoto

Frustration with runaway torts:  Jackpot Litigation; Coyote vs. ACME

Camping (my business):  New American nomads;  This RV is just wrong

Attempts at humor:  Replacements for Dan Rather;  Meyer's Law

ACME Products:  Instant Girl; Ultimatum Gun; Earthquake Pills

Enjoy.  And, don't forget to support small blogs by voting in the "best of the rest" category -- you can go vote here.  Coyote Blog (hint, hint) is in the middle of the list.