[net.politics.theory] Litigation

franka@mmintl.UUCP (Frank Adams) (12/27/85)

In article <28200417@inmet.UUCP> janw@inmet.UUCP writes:
>I must be missing something but why wouldn't the standard default
>libertarian solution for most things, namely litigation or the
>possibility of it - work for pollution ?

This is a complete change subject (so I changed the subject line).
This quote got me to wondering -- is there any connection between the
libertarian fondness for litigation, and the current mushrooming of
litigation in the United States?

The most obvious connection would be that libertarian thought has made
people more likely to sue.  I doubt this; the ideas don't seem to be
that widespread, and the people doing the suing don't seem to be the
libertarians.

Alternatively, the libertarian ideas might have been encouraged by the
increased respectability of taking someone to court.  The time scales
don't seem to me to be right for this; libertarianism emerged first.
(Although maybe not before the trend started.)

Perhaps it's just a coincidence.  I would be interested if anyone has
any ideas on the subject, however.

----------------------------------------------------------------
I have directed followups to net.politics.theory, since I think this
discussion mostly belongs there, not net.legal.

Frank Adams                           ihpn4!philabs!pwa-b!mmintl!franka
Multimate International    52 Oakland Ave North    E. Hartford, CT 06108

janw@inmet.UUCP (12/31/85)

[Frank Adams writes]
>In article <28200417@inmet.UUCP> janw@inmet.UUCP writes:
>>I must be missing something but why wouldn't the standard default
>>libertarian solution for most things, namely litigation or the
>>possibility of it - work for pollution ?

>This is a complete change subject (so I changed the subject line).

??? The subject was : Pollution: No Libertarian solution.
I suggested that laws allowing potential pollution victims
to sue for damages would constitute *a* libertarian solution.
If someone can shoot this down, fine, if not,
this is a *theorem of existence*.

>This quote got me to wondering -- is there any connection between the
>libertarian fondness for litigation, and the current mushrooming of
>litigation in the United States?

Hardly - not enough libertarians to affect statistics. Is there such a
fondness ? I have not polled enough libertarians to know. I myself
loathe litigation.

>Perhaps it's just a coincidence.  I would be interested if anyone has
>any ideas on the subject, however.

Coincidence between litigation and what ?
*Existence* of a few libertarians ?

>I have directed followups to net.politics.theory, since I think this
>discussion mostly belongs there, not net.legal.

How did it get to net.legal in the first place ?

Addendum:  Though libertarianism has not *caused* the excess of litigation,
it has a *solution*. The problem is mostly created by a legal caste
that has a vested interest in it. Therefore it keeps the legal
system and the legal process complex, obscure, slow,  erratic
and hard to avoid.  A matter of job security .
Abolish their privileged status - let anyone who wants plead, judge and
legislate, and free market will do the rest.

                        Jan Wasilewsky

gadfly@ihuxn.UUCP (Gadfly) (12/31/85)

--
> This is a complete change subject (so I changed the subject line).
> This quote got me to wondering -- is there any connection between the
> libertarian fondness for litigation, and the current mushrooming of
> litigation in the United States?
> 
> The most obvious connection would be that libertarian thought has made
> people more likely to sue.  I doubt this; the ideas don't seem to be
> that widespread, and the people doing the suing don't seem to be the
> libertarians...
> 
> Frank Adams

Most of the stuff on the net by people who identify themselves as
libertarians has been strongly against "frivolous" lawsuits.  The
principal argument has been that a sue-happy society is eroding
our basic notions about personal responsibility, a value which is
crucial for libertarianism to have any hope of working.  If the
citizenry does not feel itself to be responsible for its actions
(individually, of course), whole cities would have to be converted
into courtrooms to hold the vast population of litigants.

As any anarchist will tell you, anarchy is not chaos.  The discipline
not imposed from outside must come from inside.
-- 
                    *** ***
JE MAINTIENDRAI   ***** *****
                 ****** ******  31 Dec 85 [11 Nivose An CXCIV]
ken perlow       *****   *****
(312)979-7753     ** ** ** **
..ihnp4!iwsl8!ken   *** ***

mrh@cybvax0.UUCP (Mike Huybensz) (01/02/86)

In article <28200453@inmet.UUCP> janw@inmet.UUCP writes:
> I suggested that laws allowing potential pollution victims to sue for
> damages would constitute *a* libertarian solution.  If someone can
> shoot this down, fine, if not, this is a *theorem of existence*.

How do "laws" get passed in a libertarian society?  What coerces
someone into responding to a lawsuit or paying judgements aginst him?

> Abolish their [lawyers] privileged status - let anyone who wants plead,
> judge and legislate, and free market will do the rest.

With the exception of criminal cases, we already have that.  Any pair of
litigants can select an arbiter (or any other system they want) and work
out their differences under any system of rules they want.

This doesn't happen much because usually one party is incapable of
compelling the other's notice.  Not because of "lawyers privileged status."
Arbitrartion between unions and employers is one example of where both sides
can compel attention; polluters and sufferers don't fit that criterion.
-- 

Mike Huybensz		...decvax!genrad!mit-eddie!cybvax0!mrh

franka@mmintl.UUCP (Frank Adams) (01/03/86)

In article <28200453@inmet.UUCP> janw@inmet.UUCP writes:
>>I have directed followups to net.politics.theory, since I think this
>>discussion mostly belongs there, not net.legal.
>
>How did it get to net.legal in the first place ?

There has been occasional discussion of the mushrooming of litigation
in net.legal, so I cross-posted it there to see if it attracted any
attention from people who read net.legal and not net.politics.theory.
I restricted the followup to keep any resulting discussion from
contributing to net.clutter.  If the article had been longer, I would
have posted only a pointer to it to net.legal, but it was quite short.

Frank Adams                           ihpn4!philabs!pwa-b!mmintl!franka
Multimate International    52 Oakland Ave North    E. Hartford, CT 06108

sykora@csd2.UUCP (Michael Sykora) (01/03/86)

>/* mrh@cybvax0.UUCP (Mike Huybensz) /  1:21 am  Jan  2, 1986 */

>With the exception of criminal cases, we already have that.  Any pair of
>litigants can select an arbiter (or any other system they want) and work
>out their differences under any system of rules they want.
>
>This doesn't happen much because usually one party is incapable of
>compelling the other's notice.  Not because of "lawyers privileged status."
>Arbitrartion between unions and employers is one example of where both sides
>can compel attention; polluters and sufferers don't fit that criterion.

>Mike Huybensz		...decvax!genrad!mit-eddie!cybvax0!mrh


What does "compelling the other's notice" mean?  Is this legal jargon?

mrh@cybvax0.UUCP (Mike Huybensz) (01/05/86)

In article <4340042@csd2.UUCP> sykora@csd2.UUCP (Michael Sykora) writes:
> >/* mrh@cybvax0.UUCP (Mike Huybensz) /  1:21 am  Jan  2, 1986 */
> 
> >With the exception of criminal cases, we already have that.  Any pair of
> >litigants can select an arbiter (or any other system they want) and work
> >out their differences under any system of rules they want.
> >
> >This doesn't happen much because usually one party is incapable of
> >compelling the other's notice.  Not because of "lawyers privileged status."
> >Arbitrartion between unions and employers is one example of where both sides
> >can compel attention; polluters and sufferers don't fit that criterion.
> 
> What does "compelling the other's notice" mean?  Is this legal jargon?

No, it's not legal jargon, it's English.  :-)  Very simply, if one doesn't
force people to listen to you, you're not going to have any attention paid
to your complaints.  For example, if I'm a big, bad libertarian polluter,
why should I listen to your whining complaints, courts, etc.?  Why can't
I just ignore you and save myself money?  Whereas if I'm an employer,
and my employees have a right to strike, then they can force my notice by
threatening economic damage to my interests due to work stoppage.
-- 

Mike Huybensz		...decvax!genrad!mit-eddie!cybvax0!mrh

janw@inmet.UUCP (01/06/86)

[Mike Huybensz	...decvax!genrad!mit-eddie!cybvax0!mrh]
>How do "laws" get passed in a libertarian society?  What coerces
>someone into responding to a lawsuit or paying judgements aginst him?

A very good question. There is an extensive literature  on  that.
Defining one scheme as *the* libertarian solution would be wrong.
The way I see it, laws would be contractual obligations.
Enforcement would be private.

>> Abolish their [lawyers] privileged status - let anyone who wants plead,
>> judge and legislate, and free market will do the rest.

>With the exception of criminal cases, we already have that.  Any pair of
>litigants can select an arbiter (or any other system they want) and work
>out their differences under any system of rules they want.

>This doesn't happen much because usually one party is incapable of
>compelling the other's notice.  Not because of "lawyers privileged status."

Well, actually it *does* happen much, and is called out-of-court
settlement. And in *criminal* cases, there is plea-bargaining.

The basis for negotiation, in both  cases,  is  an  *anticipated*
court decision. Because, under the present system, *that* is what
defines the correlation of forces between the parties - the State
being  the  force majeure. Naturally, the people conducting these
negotiations, and often, in effect,  sitting  as  an  arbitration
committee,  are the legal councels for the parties. Because they,
the  lawyers,  are  the  experts   on   predicting   the   (still
unpredictable)  court  behavior.  Also because they would have to
plead the case if negotiations broke down. It is *not*  to  their
interest  to  settle  fast,  or,  as  judges  or  legislators, to
simplify the rules.

So,  effectively,  the  rules  created   by   lawyers-as-councel,
lawyers-as-judges and lawyers-as-legislators, define what occurs
out of court, as well as in.

Even the very moderate  reform  of  abolishing  lawyer  licencing
would  probably simplify and speed up justice. With more competi-
tion, lawyers and paralegals would be eager  to  please  clients;
unafraid  of being disbarred, they would find short-cuts. And new
people would bring in unlawyerly language and habits.

But of course the most harm is  done  not  by  attorneys  but  by
legislators  and  regulators.  The sheer amount and complexity of
rules breeds litigation. Privileges of lawyers are  relevant  be-
cause all this stuff is written to be understood and used by them
only. It is a web, safe for spiders, fatal to flies.

The latest bill about farmer aid has over 1300  pages.  A  farmer
and a banker are quite free to settle their loan default problems
with the local barber as arbitrator. With that bill as the  basis
for negotiation, not a real possibility.

>Arbitrartion between unions and employers is one example of where both sides
>can compel attention; polluters and sufferers don't fit that criterion.

You are quite right that arbitration doesn't work  when  one  of
the parties is powerless. This is a point that needed to be made.

Other relevant points are:
- Moral power is a kind of power too, and often proves decisive.
- No large group of people is powerless.
In particular, pollution victims, if numerous, have both numbers  and
moral  high  ground.  They  have *many* ways to compel attention.

		Jan Wasilewsky

mrh@cybvax0.UUCP (Mike Huybensz) (01/08/86)

In article <28200515@inmet.UUCP> janw@inmet.UUCP writes:
> [Mike Huybensz	...decvax!genrad!mit-eddie!cybvax0!mrh]
> >How do "laws" get passed in a libertarian society?  What coerces
> >someone into responding to a lawsuit or paying judgements aginst him?
> 
> A very good question. There is an extensive literature  on  that.
> Defining one scheme as *the* libertarian solution would be wrong.
> The way I see it, laws would be contractual obligations.
> Enforcement would be private.

Please tell us more about the way you see it.

Who do you contract with for laws?  Everybody you meet?  A private law
maker/judge/enforcer?

Why do you contract for laws?  Are you fair game for anyone otherwise?

What happens to someone who cannot afford to contract for laws?

> >> Abolish their [lawyers] privileged status - let anyone who wants plead,
> >> judge and legislate, and free market will do the rest.
> 
> >With the exception of criminal cases, we already have that.  Any pair of
> >litigants can select an arbiter (or any other system they want) and work
> >out their differences under any system of rules they want.
> 
> >This doesn't happen much because usually one party is incapable of
> >compelling the other's notice.  Not because of "lawyers privileged status."
> 
> Well, actually it *does* happen much, and is called out-of-court
> settlement. And in *criminal* cases, there is plea-bargaining.
> 
> The basis for negotiation, in both  cases,  is  an  *anticipated*
> court decision. Because, under the present system, *that* is what
> defines the correlation of forces between the parties - the State
> being  the  force majeure.

From this I can draw two points:  1) That we already have MORE of the system
you want than I had considered.  So what more do you get from your changes?
2) Our state performs the function of compelling notice.  What would perform
the comparable function in a non-coercive fashion in your idea of a
libertarian "court"?  Not just of individuals, but of powerful organizations?

[30 or so lines on lawyers' and legislators' effects on complexity of law
ommitted.  I disagree, but want to argue something else.]

> >Arbitrartion between unions and employers is one example of where both sides
> >can compel attention; polluters and sufferers don't fit that criterion.
> 
> You are quite right that arbitration doesn't work  when  one  of
> the parties is powerless. This is a point that needed to be made.

Not generally powerless: powerless with respect to one party at one
particular time is all that is necessary.  So then how does an aggreived
but "powerless" party get satisfaction in your libertaria?

> Other relevant points are:
> - Moral power is a kind of power too, and often proves decisive.
> - No large group of people is powerless.
> In particular, pollution victims, if numerous, have both numbers  and
> moral  high  ground.  They  have *many* ways to compel attention.

Fine.  I'm Joe Miner And Smelter Owner, the major polluter of your valley.
My products are sold primarily outside the range I pollute.  Go ahead,
how are you gonna compell me?  I laugh at your "moral high ground", and
if you try to coerce me, I'll righteously set my rent-a-cops on you.
-- 

Mike Huybensz		...decvax!genrad!mit-eddie!cybvax0!mrh

radford@calgary.UUCP (Radford Neal) (01/13/86)

> WHAT I WOULD LIKE TO SEE. (passed by referendum)
> 
> Effective <insert date here> , all legislation submitted for consideration
> by Congress shall be no more than 10,000 words in length. No bill shall be
> enacted that is over 10,000 words in length. 
>
>                                          -the venn buddhist

Here! Here!

For starters, I'd say we need a constitutional amendment saying that the
entire criminal law must fit in a book of 100 pages, written in language
understandable by 90% of the citizens. After all, "ignorance is no excuse".
We're all expected to understand this law...

Maybe 1000 pages could be allowed for civil law. Something anyone could
master with a bit of effort.

I think a limit on the aggregate is essential, not just on individual bills.
This would force obsolete laws off the books, *and* encourage the legislature
to see their task as the maintainance of a *body* of law, not the passage
of ad hoc special-case bills.

     Radford Neal