Tort reform (was: Why do you want to be a lawyer?)
Dylan Flynn Alexander
In article <Pine.SUN.3.95.960728...@eskimo.com>, Liberty
<w...@ESKIMO.COM> wrote:
}I think this was a reasonable question to ask, since tort reform and
}monumental reform of the legal system are considered vitally important by
}a significant portion of the population. And this list doesn't seem to
}be discussing that very much. I happen to be very interested in
}reforming the whole system, starting by reversing a lot of the decisions
}which have come down which have eroded personal rights and liberties,
}decisions which should have never been left to the courts but should have
}been decided by the legislature. There would be a lot less lawsuits if
}the courts kept their nose out of legislative issues.
I find this a rather curious statement. What sort of judicial decisions
do you believe have led directly or indirectly to an increase in lawsuits?
--
Dylan Flynn Alexander
dy...@tamu.edu
Benjamin K. Sanchez
At 11:59 PM 7/28/96 -0700, Joseph G. Adams wrote:
(snip)
>
>Ever since Thurgood Marshall and the LDF successfully litigated the cases
>that led up to _Brown_, a whole host of groups have sought to emulate
>their success in getting courts to grant them victories which legislatures
>would not give them. (BTW, Jack Greenberg wrote a good book on his
>experiences in these cases -- but I forget the title.) For example,
"Crusaders In The Courts" by Jack Greenberg, BasicBooks, 1994
>women's rights groups achieved a number of successes in the '70s
>leading to the recognition of intermediate scrutiny under the 14th
>Amendment, which mitigated most of the effects of the failure to
>convince legislatures to pass the Equal Rights Amendment.
>
>Now, the most striking example of this trend is the effort of gays and
>lesbians to win court cases on a number of issues, including military
>service and same-sex marriage. It's clear that not a single legislature
>in the country would give them the results they seek, but there's a good
>chance that courts might do so.
So I guess the "tyranny of the majority" doesn't bother you at all?
Screw the minorities if they can't get enough votes in the legislature?
Where would we be if were to follow this? I think the increased
litigation is a small price to pay for certain freedom and rights which
legislatures are slow to recognize.
>
>Leaving aside the issue of whether the decisions are soundly based in
>law, I don't think that anyone can dispute the fact that the increased
>willingness of courts to grant rights has led to increased litigation.
>
Okay, so you're not giving us your opinion about whether this is good or
not, so the obvious question is what do you think about this "increased
litigation?"
>--
>
>http://www-leland.stanford.edu/~jgadams/
>
Benjamin K. Sanchez 3L Univ. of Houston Law Center
bsan...@ix.netcom.com or st...@Students.Law.uh.edu
Jake Minas
In article <1.5.4.32.1996073...@popd.ix.netcom.com>,
"Benjamin K. Sanchez" <bsan...@IX.NETCOM.COM> wrote:
> >women's rights groups achieved a number of successes in the '70s
> >leading to the recognition of intermediate scrutiny under the 14th
> >Amendment, which mitigated most of the effects of the failure to
> >convince legislatures to pass the Equal Rights Amendment.
> >
> >Now, the most striking example of this trend is the effort of gays and
> >lesbians to win court cases on a number of issues, including military
> >service and same-sex marriage. It's clear that not a single legislature
> >in the country would give them the results they seek, but there's a good
> >chance that courts might do so.
>
> So I guess the "tyranny of the majority" doesn't bother you at all?
> Screw the minorities if they can't get enough votes in the legislature?
> Where would we be if were to follow this? I think the increased
> litigation is a small price to pay for certain freedom and rights which
> legislatures are slow to recognize.
I wonder, in exactly what sense are you using the term "tyranny of the
majority?" From your concern about underrepresented minorities and such,
I am guessing that its the idea that minorities of various sorts get
screwed repeatedly in a bare majoritarian legislative process.
Now then, a query. If that's what you mean by "tyranny of the majority,"
it is inadequate in making the point you are trying to make. Because some
of the greatest Constitutional cases of the Warren era could not be
explained in those terms. I would like to know how you could explain
abortion rights in that fashion. I will leave aside the fact that women
are not even a minority (so we don't quibble over representation in
political bodies, etc.). But what of the fact that, empirically speaking,
the degree to which women support abortion rights is indistinguishable
from men. The same could also be said for the ERA, or most other "women's
issues."
The point of "tyranny of the majority" is that some minority group is
constantly facing adverse legislation from the majority, not where the
"minority" group is just as ambivalent about the legislation as the
majority group is.
I don't really see how this delegitimizes the case for constitutionally
protected abortion rights. I think it more shows that the concept of
"tyranny of the majority," at least the groupist version you have, is not
the exclusive basis for judicial review. I tend to think of
constitutional law as more a matter of substantive morality, so I think it
counts for even less than that.
--
Jake Minas
Columbia Law School
ja...@columbia.edu
Brian Dell
(x-posted to a.s.gen-x)
Joseph Adams (Stanford law):
:: Ever since Thurgood Marshall and the LDF successfully litigated
:: the cases that led up to _Brown_, a whole host of groups have
:: sought to emulate their success in getting courts to grant them
:: victories which legislatures would not give them. (BTW, Jack
:: Greenberg wrote a good book ["Crusaders In The Courts,"
:: BasicBooks, 1994] on his experiences in these cases ... For
:: example, women's rights groups achieved a number of successes
:: in the '70s leading to the recognition of intermediate scrutiny
:: under the 14th Amendment, which mitigated most of the effects of
:: the failure to convince legislatures to pass the Equal Rights
:: Amendment.
::
:: Now, the most striking example of this trend is the effort of gays
:: and lesbians to win court cases on a number of issues, including
:: military service and same-sex marriage. It's clear that not a
:: single legislature in the country would give them the results they
:: seek, but there's a good chance that courts might do so.
::
:: Leaving aside the issue of whether the decisions are soundly based
:: in law, I don't think that anyone can dispute the fact that the
:: increased willingness of courts to grant rights has led to
:: increased litigation.
Benjamin Sanchez (U of Houston law):
: So I guess the "tyranny of the majority" doesn't bother you at
: all? Screw the minorities if they can't get enough votes in the
: legislature? Where would we be if we were to follow this?
In a democracy, perhaps? It is much easier to sell your (liberal)
agenda to the graduates of Ivy League law schools than to the
red-neck peasantry, hence your belief that the role of the court
should be expanded beyond mere norm interpretation to norm
creation, n'est-ce pas? That's why you liberals are "legal
realists," or into "critical legal studies" (Harvard never has
recovered from the CLS syndrome, from what I understand) - you say
the courts make the law because you want them to.
: I think the increased litigation is a small price to pay for
: certain freedoms and rights which legislatures are slow to
: recognize.
It's certainly consistent with liberalism to trade off tangible
(economic) goods for intangible goods (like "rights") but it
isn't very consistent with legal realism; - I mean, are there
freedoms and rights antecedent to their "recognition," do they
have _objective_ or Platonic existence?
--
Brian Dell
http://www.ualberta.ca/~dellb/
Chris Lenhart
Brian Dell wrote:
"It is much easier to sell your (liberal) agenda to the graduates of Ivy
League law schools than to the red-neck peasantry."
Please don't forget that some of us soon-to-be Ivy League law grads ARE
the red-neck peasantry!!!
Chris Lenhart
Cornell 2L
Vice President, Cornell Federalist Society
Benjamin K. Sanchez
At 10:53 PM 7/31/96 GMT, Brian Dell wrote:
(snip)
>
> Benjamin Sanchez (U of Houston law):
> : So I guess the "tyranny of the majority" doesn't bother you at
> : all? Screw the minorities if they can't get enough votes in the
> : legislature? Where would we be if we were to follow this?
>
>agenda to the graduates of Ivy League law schools than to the
>should be expanded beyond mere norm interpretation to norm
>creation, n'est-ce pas? That's why you liberals are "legal
>realists," or into "critical legal studies" (Harvard never has
>recovered from the CLS syndrome, from what I understand) - you say
>the courts make the law because you want them to.
>
in Ivy League country and (while I hate to stereotype any place,
especially my hometown) more of the latter than the former.
I don't know whether you're experience in Canada gives you a biased
view as to not understand American republicanism/democracy. But . . .
A true democracy is unworkable. No country ever has a true
democracy because it would be chaos. Therefore, we have rules and
laws. In a republic such as ours, we believe as a general rule
that minorities are important enough to be heard and represented
in government. This is fundamental in our society and was partly
what our country was founded on (maybe not your country though, as
I do not know much about Canadian history).
In regards to you bringing Legal Realists & CRITs into this, I don't
know where that came from (most likely an emotional reaction not very
well planned). By the way, all law is made because people want it
to be made. What you are arguing is the means by which law is made,
and people have different views on that. Some people believe that
active courts are good for our society; others believe that our
courts should practice more restraint. Some believe that courts do
not actually make the law, but protect from the abuse of the law;
while others believe courts make their own law and purse their own
agendas regardless of positive documents may state. (I do not
propose to state where I fall because I believe I am learning all
the time and am open to arguments and constantly readjusting my
thinking accordingly. I think it would be foolhardy for people to
get stuck in their views.)
> : I think the increased litigation is a small price to pay for
> : certain freedoms and rights which legislatures are slow to
> : recognize.
>
>It's certainly consistent with liberalism to trade off tangible
>(economic) goods for intangible goods (like "rights") but it
>isn't very consistent with legal realism; - I mean, are there
>freedoms and rights antecedent to their "recognition," do they
>have _objective_ or Platonic existence?
You start to lose me here, but that may be a factor of me
writing this to you at 1AM. I think our country generally
recognizes that there are some economic tradeoffs to enforcing
rights, but that is something which we accept as a necessary
cost. Many of the laws regarding discrimination, employment,
etc., add costs to employers and others in society, but we
believe that those rights should be protected. Albeit,
there are many cases about where the line should be drawn,
therefore more cases. Care to expand on your views of
rights vs. economy and liberalism vs. legal realism?
>
>--
>Brian Dell
>http://www.ualberta.ca/~dellb/
coates
: Joseph Adams (Stanford law):
: :: Now, the most striking example of this trend is the effort of gays
: :: and lesbians to win court cases on a number of issues, including
: :: military service and same-sex marriage. It's clear that not a
: :: single legislature in the country would give them the results they
: :: seek, but there's a good chance that courts might do so.
Joseph exaggerates the difficulties faced by the gay/lesbian community in
ordinary representative democratic legislative processes. In a number of
city councils and county boards, gays/lesbians have already scored
legislative victories. It was in response to the effort to *roll back*
those local legislative victories at the state level that the Colorado gay
rights case was brought, and won, in the US Supreme Court. To depict that
case as an affirmative attempt to end-run a resistent state legislature is
misleading. It was, rather, a conventional effort to establish the
boundaries of rights that most Americans take for granted -- not to be
singled out as a scapegoat.
: :: Leaving aside the issue of whether the decisions are soundly based
: :: in law, I don't think that anyone can dispute the fact that the
: :: increased willingness of courts to grant rights has led to
: :: increased litigation.
I will dispute it. A priori, there are no new "rights" in the
Constitution -- every supposedly "new" right granted since _Brown v.
Board_ was squarely grounded in federal court precedent, in some instances
dating back over a century. The only thing startling about the post-WWII
Supreme Court was a rediscovered spine in the face of popular opinion
(temporarily lost after the Court-packing threat under FDR) and a
willingness to be consistent, to apply the same principles that protect
the powerful to protect the relatively powerless.
I have seen no evidence that increased litigation is related to what are
here falsely described as "new rights." If anything, look to Congress,
which enacted all manner of civil rights legislation during the same time
period, expressly providing much easier causes of action for many harms
theoretically redressable under the Constitution itself.
Dell blathered:
: Harvard never has : recovered from the CLS syndrome, from what I
: understand...
Pray elaborate, Brian.
In what way has Harvard not recovered?
What is it that CLS did to Harvard?
john coates There is a land that resembles you,
where all is beautiful, rich, restful and decorous...
-- Baudelaire
Jake Minas
> : Joseph Adams (Stanford law):
> : :: Now, the most striking example of this trend is the effort of gays
> : :: and lesbians to win court cases on a number of issues, including
> : :: military service and same-sex marriage. It's clear that not a
> : :: single legislature in the country would give them the results they
> : :: seek, but there's a good chance that courts might do so.
>
> Joseph exaggerates the difficulties faced by the gay/lesbian community in
> ordinary representative democratic legislative processes. In a number of
> city councils and county boards, gays/lesbians have already scored
> legislative victories. It was in response to the effort to *roll back*
> those local legislative victories at the state level that the Colorado gay
> rights case was brought, and won, in the US Supreme Court. To depict that
> case as an affirmative attempt to end-run a resistent state legislature is
> misleading. It was, rather, a conventional effort to establish the
> boundaries of rights that most Americans take for granted -- not to be
> singled out as a scapegoat.
Wait a second. What are you saying here? If Joe is exaggerating the
difficulties faced by the gay/lesbian community in "ordinary
representative democratic legislative processes," why is it the case that
they are failing to resist a "rolling back" of those victories? In other
words, why do they have to go to court to defend themselves?
I might add, furthermore, if you characterize gays as being capable of
achieving "ordinary" legislative victories, you are undercutting their
case for suspect class status under Equal Protection and analogous stuff.
And what do you mean by a "conventional effort" to establish "boundaries
of rights?" It's so vague I cannot grasp it. The legal theory of Romer
v. Evans is anything but conventional -- the right to participate in the
political process theory has only succeeded once before (Seattle School
Dist. No. 1), and is furthermore rather a mushy theory. And furthermore
the right "not to be singled out as a scapegoat" is not a universal.
Under Federal civil rights law, for example, it applies only to five or
six categories, and furthermore has lots of carve-outs.
Besides, you misconstrue what Joe said. He did not say that gays have not
been able to get anything through the legislature. For example, gays have
succeeded quite handsomely in preventing legislation that would send them
"out east" in cattle cars (non-events are funny like that). He only said
that they are going to court for legislative victories they could not get,
such as marriage and military service rights.
> : :: Leaving aside the issue of whether the decisions are soundly based
> : :: in law, I don't think that anyone can dispute the fact that the
> : :: increased willingness of courts to grant rights has led to
> : :: increased litigation.
>
> I will dispute it. A priori, there are no new "rights" in the
> Constitution -- every supposedly "new" right granted since _Brown v.
> Board_ was squarely grounded in federal court precedent, in some instances
> dating back over a century.
Squarely grounded in precedent?? You mean such federal court precedent as
Plessy v. Ferguson? I mean the whole case rests on a new circumstance and
a new method -- social science data. I suppose you can say "grounded in
precedent" in the most loose fashion. Such as by saying "precedent says
the Equal Protection clause means the government must not deny an
individual's equal protection, seperate-but-equal does not do so."
> The only thing startling about the post-WWII
> Supreme Court was a rediscovered spine in the face of popular opinion
> (temporarily lost after the Court-packing threat under FDR) and a
> willingness to be consistent, to apply the same principles that protect
> the powerful to protect the relatively powerless.
Rediscovered? What were the court's days of glory before that ignonimous
court-packing era? I think you'd be hard-pressed not to say it was the
Lochner era. Prior to then, I think you would be making a pretty thin
case that the Court was particularly activist in constitutional review. I
think you would also be hard-pressed not to say today that the volume of
judicial review does not dwarf that of the eighteenth century.
> I have seen no evidence that increased litigation is related to what are
> here falsely described as "new rights." If anything, look to Congress,
> which enacted all manner of civil rights legislation during the same time
> period, expressly providing much easier causes of action for many harms
> theoretically redressable under the Constitution itself.
What is furthermore not convincing about your case that recently
recognized rights have been in some metaphysical constitution from the
beginning is the position that the deciders of those seminal cases said
when they were recognizing those rights. They said, quite plainly, that
the Constitution must evolve or change with the times. Which means that
before those values have changed, the rights did not exist. But then
again, this is a rather silly inquiry -- "rights" don't just exist "out
there" in the universe.
coates
Joseph G. Adams (jga...@leland.Stanford.EDU) wrote:
: >I have seen no evidence that increased litigation is related to what are
: >here falsely described as "new rights." If anything, look to Congress,
: >which enacted all manner of civil rights legislation during the same time
: >period, expressly providing much easier causes of action for many harms
: >theoretically redressable under the Constitution itself.
:
: That's surely one cause, but it seems silly to deny that the willingness
: of courts to grant (or recognize, if you prefer; I don't think there's
: much of a difference) new rights has led to more litigation. This seems
: like rational behavior.
Only if (i) people have resources to pursue those rights, (ii) no
countervailing procedural impediments to pursuit of those rights were
installed, (iii) litigation is necessary to enforce those rights (as
opposed to voluntary self-enforcement) and (iv) the rights remain
important over time. So, a priori, there is no logical connection between
"new rights" (or clearer interpretations of old rights) and increased
litigation. To settle the dispute, one would need to do a little
empirical spadework.
--
coates
Joseph G. Adams (jga...@leland.Stanford.EDU) wrote:
: > So, a priori, there is no logical connection between
: >"new rights" (or clearer interpretations of old rights) and increased
: >litigation.
:
: A priori, maybe not. However, any first-year law student knows that
: civil rights cases are mostly a mid-late twentieth century phenomenon.
First year law students "know" a lot of things they don't. ;) By
definition they haven't completed their Con law courses, so at best
they're jumpting to conclusions. An in any event, as I pointed out
earlier, "civil rights" cases include cases under federal laws like Title
VII. Few if any cases are brought under the Constitution alone. Thus, to
ascribe any litigation surge to Constitutional interpretation remains
unwarranted without more analysis and study.