In many other blogs, I've talked about the intellectual war going on in this country between right wing and moneyed interests (corporations, Chambers of Commerce dedicated to advancing corporate goals, "deregulators" who think nothing of accumulating money at the cost of equality and resulting in poverty, failed social policy, etc.) on the one hand, and "everyone else" who isn't part of that effort, on the other.
February 2013 Archives
How about that title to get your attention, eh? From time to time as I do these blogs, I really check myself once or twice before I publish. I sometimes wonder if I'm being too strident and too anti-corporate, too suspicious and cynical, about the aims of the insurance industry, the banking industry, and large corporations generally, and about their "super conservative" and "neoconservative" apologists and allies. I think about that because I'm not a reckless writer, but I am an aggressive one. I'm a man who deeply believes in what I write about. When I started doing this Blog, it was with the aim of making sure that my clients, and even my opponents, understood where I come from. I actually think that I come from a place where far more people come from than don't. I think even my corporate attorney opponents are far more human than many of the clients that they represent. I think that many of the conservative judges with whom I respectfully disagree, sitting at the State and Federal level, are more human than the corporations their decisions unfairly favor. All that said, however, I will not stop saying what everyone knows to be true. Corporations are not people, the corporate shield is a load of crap, and Tort Reformers are liars. The concept of "tort reform" is simply a catchall phrase for the attempts by super conservative and business interests to continue to affect your right to enter a Courtroom and challenge them at law. Make no mistake: even if they manage to convince "everyday citizens" that they're trying to save those citizens money in product cost or in some other obscure way, they're not. They're are trying to save themselves from having to account for their actions in Courtrooms before a jury of your peers. That's what Tort Reform is all about, and that's why lawyers who represent individuals call Tort Reform Tort Deform. One of the ways they lie is to simply make up statistics, or read statistics in a biased way, in order to lie their way into the hearts and minds of the people they attempt to influence. Here are some debunked myths that the Tort Deformers use in their campaign of lies. LIE: Americans are suffering from a "litigation explosion" of frivolous and unnecessary lawsuits. TRUTH: Tort cases and generally claims for individuals have been on the decline for decades. According to the National Center for State Courts, a nonpartisan data collection agency, tort cases declined by 25% between 1999 and 2008. LIE: Claims on behalf of individuals, such as those for personal injury or employment rights, "clog up" our Courtrooms. TRUTH: According to the National Center for State Courts, tort cases and cases on behalf of individuals only make up about 5% or slightly more of the civil case load. In fact, contract cases, which are more likely to involve corporations suing one another, are 10 times more numerous, making up just over half of the Court's work. In fact, while claims on behalf of individuals are on the decline, the number of contract cases between businesses rose 63% between 1999 and 2008. So who's clogging up the Courts now? LIE: Lawsuits are "jackpot" justice. Winning a lawsuit is like winning the lottery. TRUTH: Obviously, this is a load of crap, because it's attempting to do away with the jury system, something that hundreds of thousands of Americans have fought and died to protect. In addition to that, most lawsuits result in comparatively small verdicts. They just don't make the news. Accordingly to the Department of Justice's Bureau of Justice Statistics, the average Court award to individuals is only $31,000.00. Once more, award sizes have actually been declining over the years in gross dollars, even as the value of the dollar also declines. LIE: Corporations get "hammered" in Court by outrageous punitive damages awards. TRUTH: Punitive damages awards are not commonly sought or awarded, and when they are, they amount to less than twice compensatory damages. According to the Bureau of Justice Statistics, the median or average punitive damages award is $55,000.00. There were two few medical malpractice cases in which punitive damages were awarded to provide a statistically reliable estimate of the amount of punitive damages in that category. That tells you that they are exceedingly rare and that this is one of the biggest lies super conservatives and tort reformers spout. LIE: Doctors are increasingly bombarded with medical malpractice lawsuits. TRUTH: Both the National Center for State Courts and the National Practitioner Data Bank, a doctor group, to which medical malpractice payments must be reported, have found that the number of medical malpractice payments to have steadily dropped over the last ten years. The number of malpractice payments in 2010 was 13,277 nationwide, a 35% drop since 2001. According to the National Center for State Courts, medical malpractice cases represent well under 2% of all civil cases, and less than 8% of all tort cases. Remember from above that all tort cases represent a tiny fraction of all court cases. As you can see, truth only sounds like truth sometimes. Usually, it's subjective, and sometimes, it's crap. Here, anytime someone seems to be repeating what Rush Limbaugh says or what Bill O'Reilly says or super conservative big mouth says, ask them for statistics, ask them for proof, from a neutral source, not Chambers of Commerce, Fox News, or Trade Groups. Then show them these, and see whether or not they're honest enough to change their view. If instead they simply cleave to the idea that "somehow," the super conservatives incorporate big mouths are right, then this person is a lost cause. The Civil Justice System is the most precious safe guard of liberty, yet liberty is eroded in many ways, some of them subtle. Corporate power insidiously widens the gap between rich and poor even as the corporations put self-serving "We are awesome!" ads on TV and get smiling politicians to endorse their agendas in exchange for big checks. Don't fall for the lies. Tort Reform is a lie and the Court system should be fully and unimpededly open to all working people and their families as well as the corporations that seem to have taken them over.
The dialogue in this country often mis-appreciates - sometimes broadly and badly - what the law actually says about something. That's understandable, though regrettable and correctable. In the same way that most people completely fail to understand medicine the way doctors do and "get it wrong" far more often than they get it right, especially when they only have a little bit of information (just enough to be dangerous), lay people think they know what the law is going to say, what it's all about, and they're usually wrong, though no less distressed when they learn how wrong. For example, most people think that corporations are one thing - a paper creation - and that flesh and blood human beings, with a circulatory system and a heart (and a conscience), are another. As a lay person, anyone should think this. Common sense, right? After all, a corporation really doesn't even exist the way a person does, right? Sure, it has an office, and it might own property and such, but it's still not real. It's just a fictional construct written down on a piece of paper that a bunch of people agree to. A corporation can't eat, speak, go to the bathroom, laugh, cry or feel. You can't tickle it, tell it a joke, or have it rub for head when you're sick. It can only "act" through human beings. Anytime a corporation "does something," we need to remember that human beings are doing it for the corporation. But there's a strange, almost sociopathic disconnect between the humanity of the person when they act in their private and personal lives, on the one hand, and when they act for the purposes of the "corporation," on the other. Do you think the people that did the evil at Enron, ATT and Tyco would've done all that if they were doing it themselves, for themselves, literally, stealing that money with their own hands? I doubt it for most of them. Human beings that would never dare to be as dishonest, callous, cruel or selfish in their personal lives as they are when they serve corporate interests seem to feel perfectly comfortable displaying those horrid traits when they act for the corporation. But it's not that they're really all sociopaths, though some of them probably are. They do this because they've been taught - our entire culture has been taught - that there's a "separateness" between the paper goals of a corporation on the one hand and the human goals of a person on the other, and that personal accountability is different as between the two. The corporation's sole purpose in life is to make money. It doesn't care for its soul, or its conscience, because it doesn't have them. It depends on human beings to effectuate this goal and sadly, for the last several hundred years, it's been the western tradition to allow human beings to do anything in service of these goals, as long as these people act behind the corporate wall, the "mask" which lets them get away with products that murder and maim, with theft, with the worst kinds of fraud. We protect those human beings wearing the corporate mask from the human consequences of those acts by giving them the protection of the "corporate shield," which essentially absolves them of any moral, ethical and especially, legal, responsibility, for wrongdoing in service of the soulless corporation's greedy aims. Of course, this was a western phenomenon at first, and now it is a worldwide one. Congratulations to us all here in the west. That's why it's so ironic that, at the same time that the neoconservatives and selfish "ultra capitalists" talk about this "separateness" when they're trying to protect corporate wrongdoers, they then completely reverse themselves when they're trying to get corporations to unduly and improperly influence the outcome of elections by spending insane amounts of money to support conservative candidates. It is, clearly defined and bluntly stated, the worst kind of two-sided, double-talking cynicism; it's positively Orwellian in its seductiveness. Regrettably, though, most people don't even understand that it's happening. The same "super conservative" bloc of politicians and Supreme Court Justices that will talk till they're blue in the face about the "corporate shield" and will try mightily to excuse any crime in service to the corporation's money goals have now been screaming routinely about how corporations are "people, too." Why say something so patently wrong? And stupid? And most importantly of all, why say something so dangerously opposite to their normal line of nonsense - that corporations absolve moral responsibility because they're not people? Have they gone crazy? Well, crazier? Hearken. They're counting on your complacency and failure to understand the shape of what they've been trying to do for 35 years; to turn America into a corporate, fascist playground. The answer, of course, lies in the Citizens United decision, and abominable decision by the United States Supreme Court, from 2010. In the Citizens United Case, the Court, in holding that corporations are essentially "people" and have the same free speech rights that people have, putatively relied on the decision in the case of New York Times v. Sullivan, from 1964. Now, I want to point out something for a moment. "Free speech rights" aren't just words. They're part of the Bill of Rights, which is part of the Constitution, the first of its kind on the planet. People died to preserve the right of this Union to create a Constitution to benefit people. People have also died, by the hundreds of thousands, in wars since, to continue to protect and defend that right. Do you think that all those people who died, and all the people who grieve them, think those deaths happened so that Walmart can donate millions of dollars to super conservative candidates and try to influence an election so that the candidate who wins the election will protect Walmart's right to continue to abuse workers? Does that feel right to you? It doesn't because it isn't. The New York Times decision didn't hold that corporations are people and the Citizens United Case shouldn't have held that, either. But this is what I've come to expect from super conservative Justices who see their role on the Supreme Court as protecting the rights of corporations and the wealthy as their paramount mandate. They speak eloquently but cynically and dishonestly about what they do and how they do it, sneer as they brush away appropriate and very accurate criticism of their very clear agenda, and hold themselves generally aloof. Corporations are not people, and money is not "speech." It's wrong to allow corporations to make donations to political candidates. It's wrong to allow corporations to use human beings as fronts in making those donations. Corporations are not human beings; human beings are human beings. Human beings should be held accountable for what they do no matter in whose service they do it, the corporate shield should be absolved, the Citizens United decision should be Congressionally repealed and corporations need to be reigned in before it is too late. The corporate culture in this country is out of control, and represents a giant sinkhole on the Journey to Justice.