When Lawsuits Make Policy (20 posts)
7. Jim & McRostie
Wed, Jan 20, 1999 - 7:24 PM/EST
Tad
If I understand right, I hear both of you agreeing that it is dangerous for legislatures to start using the legal system as a policy tool.
And I think I agree. But I also think it is important to ask WHY legistlatures are suddenly looking to the courts. And I think that lobbying is a large part of the answer.
It has become nearly impossible for Congress to enact legislation that is supported by a majority of voters, if it opposed by big money lobbyists. Gun control is probably a more clear example of this than tobacco legislation, since the tobacco issue isn't quite as polarizing among voters. But both examples are relevant.
The lawmakers' recent recourse to the courts may be a sign of resignation. It may be an admission that legislatures cannot cure their addiction to lobbyist money, and that the only way to give voters what they want in the face of this fact is to go to court.
Of course, once we start down this road, the courts can be used against voters' interests as easily as for them. It is a dangerous precedent.
I think you are right, Jim. Curing the system is a better solution than turning the courts into a congress.
8. tad
Thu, Jan 21, 1999 - 3:50 AM/EST
mmac
i dont feel the same way as u do as far as lobbyist. especially the nra. i live in the south and believe me our culture, and i know there are exceptions,but as a general rule, believes in hunting,the right to bear arms for safety. i know a lot of ppl here that belong to the nra for only one reason. they see the government as infringing on their culture and personal freedoms.they join the nra for only one reason. to give their money to that lobbyist group to fight on their behalf.im sure all of the lobbyist groups have ppl donating money on their behalf for their beliefs. that is very democratic.
9. Legal system as a policy tool?
Thu, Jan 21, 1999 - 12:02 PM/EST
McRostie
Tad .... I guess I failed to express myself clearly enough. This whole thread started out when someone, I don't recall who, questioned the "court-made" law. I said, and I thought clearly, that the Courts don't make law, they interpret it.
And legislatures don't use the "legal system", i.e. courts, to make law. Legislatures create the laws the Courts interpret and create the courts (except the Supreme Court which was created by the Constitution) for that purpose. Within the scope of legislation, the Courts may be given some discretion and the ability to exercise judgment, but it is always bounded by the law (legislation) itself. The Courts can not make law ....only interpret.
Yous statement raises a more basic question. Does the Legislature have the right to make law to set social policy? My goodness, what earth-shaking arguments that has caused and will continue to cause in the future. Abortion, Gun Control, Women's Rights, Gay Rights, Progressive Taxation, Draft Deferrments .... all of them are areas where we as a society have deep and profound disagreements as to the propriety of legislative actions setting forth social policies.
Troubling though all of these questions may be, I'll submit that the mechanixm set forth in our Contstitution for solving the legality of proposed solutions, i.e. the Supreme Court, is the only satisfactory answer. The Courts must, I repeat, must have the ability to interpret the law and answer the questions of whether any particular law is consistent with constitutional requirements and prohibitions. When, and if we take this power from the Courts, we will be faced with either anarchy or dictatorship. I'm not in favor or either choice. I'm sure you are not either.
Regards, McRostie
10. McRostie
Thu, Jan 21, 1999 - 3:58 PM/EST
JimP
I think you're missing an important nuance here. This nuance is that, as Tad says, individuals and groups of individuals are turning to the courts in order to address inequities that they are unable to have addressed through legislation. Monied lobbyists are a part of the problem, not the only problem. I'm reminded about the discussion we had about our legislators not listening.
Yes, the courts intrepret the legislation, and eventually the Supreme Court provides a final interpretation. The people's needs are addressed.
And, I think you may agree, the legislators aren't blind to the machinations of the courts. They respond with laws that are then interpreted by the courts. In the process, the real needs of the people are often met. I think tobacco is an example of that interaction. It isn't clean, but it is moving.
Now, guns are becoming the court's issue. Perhaps, just maybe, the legislators will smell the bacon (theirs) and begin to write the effective legislation you say that they can. In this case, I hope so.
When the court changes the impact of a law that has been the law of the land for decades, it is de facto, re-writing legislation. I think, though I am certainly not a lawyer, they have done so in the affirmative action arena. It wasn't so much interpretation of the law, as their responding to the changing face of the nation. Some people, who could not get their legislators to change the law, used the courts to do so. That's harsh, but I think true. As we used to say in the AF, "It may not be right, but it's damn sure true." I'm not so positive that it is true as that sounds though.
So, there's another long, rambling post.
Regards,
Jim
11. Court made law?
Fri, Jan 22, 1999 - 12:31 PM/EST
McRostie
I agree Jim, individuals are more frequently turning to the courts to redress perceived wrongs. Let's not forget however, that the court must see the conduct charged as "wrong" before there is any redress. We are a VERY LITIGIOUS society, for better or worse, mostly worse in my opinion.
The question of affirmative action is, I agree, troubling. Our law, I think you'll agree is still in a state of flux in these areas. For a long time we didn't have any except the near 150 year old equal protection amendment and the original constitutional statements about equality. Law on the subject was practically non-existent.
Then, we started to pass laws, and the Court finally dealt with the education question for the first time since upholding "separate but equal" as a principle and overturned the dictrine. This was one of those cases where the court could not get too far ahead of public opinion.
Now I understand quite well how one oppressed by the reversal would say the court made new law. This may be only a sophistry, but what it really said was "Whoops, we goofed the first time. Law really does not permit "separate but equal". That's not making new law, its correctly stating what the law is. Sophistry, perhaps, but its the best I can do on that one.
Regards, McRostie
12. What's wrong
Fri, Jan 22, 1999 - 2:19 PM/EST
JimP
and who decides, is the crux of the problem. I submit that it is easier to convince 12 people in a jury than 51% of the legislators, or even voters. This smaller set of the whole is less representative.
I realize that the court decision faces appeals until it reaches the Supreme Court. However, the appeal must be based on something other than "We don't agree with the court's decision." That nicety can effectively seal the Supreme Court out of the process.
Here, at the point at which the decision has not reached the Supreme Court, is where the interaction of the various arms of the government. The Justice department is tasked to enforce the "new" interpretation of the law. The legislation can enact new laws or modify existing law that may cause the entrie review process to begin again.
It just isn't as clean as I think you are picturing it, McRostie. I think you recognize that when you plead the "sophistry" of the argument. It is in this middle arena that I think the courts can "make" rather than interpret law.
Looking forward to continuing.
Regards, Jim
13. McRostie
Sat, Jan 23, 1999 - 5:20 PM/EST
Tad
McRostie, you are correct in pointing out that the legislatures make the law, and the courts interpret it. That has not changed, you are right. So perhaps it is not quite specific enough to say that the legislatures are "using the legal system to make policy."
More specifically, the legislatures are using TORT law to make policy. Tort law, like any other law, has been enacted by legislatures and interpreted by courts. The purpose of tort law is to define the obligations of liability that exist between citizens, corporations, govts, etc., and to prescribe the awarding of damages in liability suits.
But legislatures are now using tort law for a purpose very different from its original intent. They are using it to regulate industry.
The normal way to regulate industry is for legislatures to pass regulatory laws. But now, the government has chosen to regulate industry in a totally unprecedented way: by disguising regulations as tort liability claims.
Jim is right. These regulatory decision are now being made one at a time by small panels of 12 people, rather than by legislatures. And these panels (juries) are not elected, they are SElected, by the lawyers for the parties involved in the dispute.
So I think it is fair to say that courts actually are making policy, but they just aren't calling it policy. They're calling it liability.
14. Tad's right in many ways.
Sun, Jan 24, 1999 - 2:19 PM/EST
McRostie
Tad, the distinction you point out as to the use of Tort law to make policy is correct. I think the problem is not the legislataive creation of a law establishing a tort liability, that I don't find abhorent. The problem is the use of tort law to attempt to control social policy in a way not reflected in the law as adopted by the legislatures. The creative efforts of the Tort Lawyers to arrive at hugh fees in Class Action suits (where as I'm sure you will agree, the "plaintiffs" rarely recover much of anything) is a major part of the problem.
I disagree with the current spate of "gun cases"
as a mis-use of Tort law. George Will, with whom I rarely agree, has a good colu8mn today on the subject. Much of what he says is correct for a change.
I'm called. Sorry I can't finish coherently.
Regards, McRostie
15.
Sun, Jan 24, 1999 - 9:10 PM/EST
JimP
To me, we have touched on so many issues facing us, and the US, in these threads.
1. Our legislators do not, or poorly represent us.
2. Our media is not responsible.
3. The courts are being used, as a last resort, or as money making schemes, to set social policy.
4. Public discourse seems to have the extremists controlling the floor.
5. Our leaders respond to the challenges of raising money for their campaigns faster than to the needs of their constituents.
6. Education does not equip our children to compete in today's society.
7. And so on...
People like me see these as being intertwined. And for many of us, the first impulse is to withdraw from the political arena, indeen all interactive arenas, and let the rest of you go to ... .
I cannot do that, at least not yet. But, even in these threads by so many intelligent, well-meaning, thoughtful persons I have not seen recommendations of what would it take to change it. The exdception would be Gayle's urging us to participate by posting URLs that we can use to learn facts.
What would you recommend? Where would you start? How long do you think it will take for the pendulum to begin its reversal?
Regards,
Jim
16. My apologies.
Mon, Jan 25, 1999 - 6:08 PM/EST
JimP
I should not have posted that last post without more thought. I realize that I am also guilty of not proferring any solutions. I guess I was attempting to get someone else to tell me what to think, and that's one of the traits I dislike most in others.
I'll do some more thinking, and try to place some ideas before you all.
Regards, Jim
17. Which pendulum?
Tue, Jan 26, 1999 - 10:45 AM/EST
McRostie
I believe we have more than one pendulum in action in this world.
There is a pendulum on the religious world that has been swinging in a direction of more autocratic clerics in the Muslim, Christian and Jewish worlds for some time. I don't believe, Jim, from what you have written that you agree with much of what that swing presages.
There is a pendulum in the political world that for some years was swinging in the Conservative direction as represented by the right in the Republican party. I think that pendulum has reversed its course and started to swing back ... still towards the middle. While it hasn't gotten past that point. I sense that you have some reservatrions about that change of direction.
The pendulum of personal liberty? For many years, at least since the 60s, that one has been swinging in the direction of more personal choices, nor fewer being allowed. That one I believe is still going in that direction with a strong push from the Libertarian group. I think you agree with that direction, as do I. However I have a fear that it is beginning to approach anarchy on the far end of the swing.
I might sum up my ideas about pendulums with the statement that they are relatively stable only when they are near the middle of their swings. At either end, they reflect instabilities which are not desireable from much of any point of view
Regards, McRostie.
18. Led to Ten More Days Thread
Tue, Jan 26, 1999 - 12:19 PM/EST
JimP
My promise to think out the subject, and to place some ideas before you, led to the new thread.
McRostie, I believe that there are multiple pendulums, each in a different part of their swing. You are right - at either end of their swing they are the least stable.
I don't see anarchy. Rather, I see that the pendulum has already begun its reverse swing, and anarchy is less likely. I am reminded of Hernicks definition of Minarchist, and perhaps that is more likely now.
No, I really do not have reservations about the change in direction of the political swing. I sincerely hope that the impeachment mess has provided the "approach to the edge" that has warned us of the extremes in our discourse.
People, when their world changes around them, find some solid, unchanging base to hold to. The solution, from my point of view, is not to rail against the autocratic clerics, but to provide a just world, educated to be able to discern the shades of truth, and to let the wisdom of the people control the process. this implies that these people will have the means to effect their political environment, and in our case, that implies that we illunimate the sources of financing of candidates.
Another sermon? Perhaps, but again, that's where I am these days. I think I will post this in the 10 days thread also.
Regards,
Jim
19. Anarchy?
Wed, Jan 27, 1999 - 11:55 AM/EST
McRostie
Jim ... I'll attempt to justsify my fear of anarchy as the political pendulum approaches one end of its swing. The Libertarians and , yes, the Reagan conservatives, can agitate against what our government does all they want and I won't find any danger in the movement. My fear of anarchy arises out of the fact that agitation aginst the actions of government has changed, I believe since Reagan's "get government off our backs", It's now an agitation against and attack on government itself. I certainly hope we are coming to the end of the swing in that direction but I fear it has a way to go yet.
Railing against autocratic clerics isn't exactly what I had in mind. Prevention of their taking control of the machinery of government as they have done in too many areas of the world (including local school boards I might add) is what I feel is needed. How prevent? By the use of the political process and, you're right in this, education as to the nature of the disaster we face if we allow Afghanistan to come to the US.
So much for a simplistic answer to a complex problem. I'm good at them, the answers I mean.
Regards, McRostie
20. To McRostie
Wed, Jan 27, 1999 - 3:09 PM/EST
JimP
We really have ourselves in a bind don't we? For instance, using your school board example. If a sufficient number of voters in a school district vote for J. C. Hisself, and his twelve cohorts of the Religious Right, how can we "prevent" 'ol JC and his boys from voting in their policies on the school board? Answer: we can't. (My answer, anyway) The minority can use the court system to attempt to contain them from certain actions that regard church and state separation, but beyond that, they have no say in curriculum.
There, likewise, isn't a method of preventing 51% of the voting nation from putting Pat Robertson into the Presidency. And, as we have seen, it really does not have to be 51%. For WJC it was 49+% - see Gayle's statistics.
Digressing - I read a novel once called "Whisper of ther Blade." It essentially was a story about how close we came to having a "white knight" come in and save us from our civil rights war. Just a matter of luck in the novel. Essenially, to agree with you about the attack on government, I fear that actually happening. I see actions of the government causing people to reconsider whether they even want to have a government. I see the "militia" as being the arm of attack on the nation you mention. Oklahoma is an example, though not a complete one.
I fear actions such as Waco, Oklahoma, and others pushing us all toward the extremes. And, once there is no middle, we are ripe targets for a "white knight" to enter to "bring us together", but in doing so, that white knight will strip us of the freedoms that allowed us to be who we are, or were.
So, having digressed, I could as easily argue that I see the nation becoming more aware that they are, or were, moving toward the extremes, and that recognition itself moving us back toward the center. There are several anecdotal evidences I could cite, but not here.
Regards,
Jim
