Saturday, August 02, 2008

Tainted peppers and spilled hot coffee

I usually enjoy The Political Crank. Jim Freeman's work is always well-written, and his analysis is usually incisive.

He consistently turns out A work, but I have to give his most recent article a solid F. Unless I'm missing massive irony (he usually speaks plainly and directly), his criticism of Brian Grubbs' lawsuit against Wal-Mart is tendentious and hypocritical.

(If Jim is indeed speaking ironically, I apologize for missing the irony; the remainder of this essay refers to those who actually do literally hold the opinions stated in Jim's post.)

Jim's opinion that Wal-Mart is not typically cavalier with food safety is completely irrelevant. Whether Wal-Mart is or is not actually cavalier with food safety is not a matter of opinion, it is a matter of truth or falsity based on facts.

The explicitly stated primary purpose of the civil judiciary is precisely to establish matters of truth based in fact, and evaluate those truths according to law and precedent. It is the system that we have, and to criticize Mr. Grubb — employing puerile insults — for employing this system for its stated purpose is prima facie unwarranted.

Jim offers no evidence whatsoever that he examined the actual facts of the case or the relevant law. All he has done is assumed that because he personally does not find the claim plausible without examining the actual facts of the case then Mr. Grubbs must be attempting extortion. This is the very essence of tendentious propaganda masquerading as an analysis of truth.

His characterization of "spilled-hot-coffee suits" is a big clue that he has not examined the concept of civil litigation in detail, and evidence that he has absorbed Stella award bullshit propaganda. (See also this legal analysis of The McDonalds Coffee Case.)

Furthermore, his deprecation of settlement and contingent fees per se likewise illustrates at best a profound ignorance of how the civil judiciary works (and at worst a hostility to the concept that an individual can have the effective ability to employ the civil judiciary).

Jim complains often (and justly) about how large corporations and powerful political interests exploit and oppress individual people. The only mechanism we presently have for resisting this exploitation is to the civil judiciary. The civil judiciary has at least a passing interest in and ability to evaluate these conflicts according to the facts and scientific truth, rather than pure political power and economic influence.

Any system that purports to resolve conflicts when common sense and good will has broken down will be subject to abuse. We can — and have — taken many steps in our civil judicial system to prevent abuse. These steps cannot be perfect, since we have no way of consistently objectively determining independently of the process whether some outcome is abusive or legitimate. Both parties come to the process believing the interests of justice lie with their position; only one will be upheld.

Because the whole point of the civil judiciary is to resolve conflicts when common sense and good will have failed, and because we must take great procedural pains to avoid abuse, the process will necessarily be expensive. Furthermore just because fault implies responsibility does not entail that the absence of fault implies the absence of responsibility (the fallacy of denial of the antecedent). Therefore, the idea of settlement is not intrinsically bad; it is at worst the idea that compromise — even compromise of idealistic notions of justice — can be pragmatically superior to conflict. It is no virtue to fight every battle, no matter how small; it is no virtue to defend even the most trivial violation of some idealistic principle. And in a system that grants standing on only on personal interest, it is no vice to use the system for one's own personal interest.

Likewise, the contingent fee structure is the particular mechanism we have worked out to give individuals the ability to bring civil suits without already possessing enormous resources. Perhaps it is not the ideal mechanism, but it is the one we have. Unless we change the entire system, it is simply not possible for an ordinary person to come up with the tens or hundreds of thousands of dollars to even ask for justice. I'm all for changing the entire system, but using Grubbs' case as a justification argues for changing the entire system to prevent (or more efficiently prevent) individuals from using the system.

The notion that large corporations and powerful political interests need to be further protected from individual "abuses" of the system is not only ludicrous, it is completely at odds with the majority of Jim's writing.

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