I just saw HBO’s “Hot Coffee”.  It is a 90 minute in depth analysis of individual cases on how we have compromised the effectiveness of our legal system.

The lead story was about the elderly woman who was severely burned by the hot coffee she got from McDonald’s.  This case became the poster child for tort reform and frivolous lawsuits.  But like so much in the media the whole story was rarely told.

The burns were severe, third degree burns involving skin grafts. McDonald’s had settled over 700 similar cases. The original judgment of $2.4 million dollars was decided by calculating two days worth of sales of coffee and was reduced to $480,000 by the judge.  In other words when you got the whole story the judgment was not so unreasonable and it showed how well the jury system actually worked.

The subject of tort reform, judgment caps, and mandatory sentencing should be repugnant to our legal system. I have stood against legislation from the bench: the wide interpretation of the law to such an extent that the judges actually write laws that the legislature never intended.  But I also stand against legislatures adjudicating cases they have never heard.  This includes caps and mandatory sentencing.

There are cases that are poorly decided.  Our legal system is not perfect, but we must not let the perfect become the enemy of the good.  We should not prohibit good justice because it is occasionally misguided.  Like many laws and regulations these efforts too often create bigger problems than they solve.

Unable to get effective tort reform legislation proponents sought to accomplish the same in states where judges are elected by funding campaigns to elect sympathetic judges, and smearing others.  I would propose that judges be appointed, though not necessarily for life, and confirmed by legislative branches.

“Hot Coffee” shows the outcome of tort reform. A child is brain damaged at birth by clear malpractice but the jury’s $5.7 judgment that will clearly be needed to take care of the child is reduced to $1.2 million because of caps.  The family now gets Medicaid to take care of the child: taxpayers are bailing out the doctor.

The final segment is about a 19 year old female Halliburton employee who is roomed with numerous men in a military style barrack in Iraq. She complains about the arrangement and that she this was not what she was told her quarters would be like. She complained about harassment and was eventually drugged and gang raped.  She was unable to get a jury trial because of a forced arbitration clause in her employment agreement. Forced arbitration clauses are written, administered, and often biased towards the company over the consumer or the employee.  It was new to me that these clauses could circumvent clear criminal action and negligence.

Al Franken, to his credit, sponsored an amendment that this would not be allowed with military contractors, and after four years the victim is getting her day in court.

An Alabama judge summarized it best at the end of the show. “What we need is tort respect, not tort reform.”

It is not considered enough that law should be just, it must be philanthropic.  It is not sufficient that it should guarantee to every citizen the free and inoffensive exercise of his faculties, applied to his physical, intellectual, and moral development; it is required to extend well-being, instruction, and morality, directly over the nation. This is the fascinating side of socialism.

But… these two missions of the law contradict each other. We have to choose between them. A citizen cannot at the same time be free and not free.  Mr. de Lamartine wrote to me one day thus: “your doctrine is only half of my program; you have stopped at liberty, I go on to fraternity.”  I answered him: “The second part will destroy the first.” And in fact it is impossible for me to separate the word fraternity from voluntary.  I cannot possibly conceive fraternity legally enforced, without liberty being legally destroyed, and justice legally trampled underfoot. Legal plunder has two roots: one of them … is human greed; the other is misconceived philanthropy.

From The Law By Frederic Bastiat first published in 1850

It would be impossible to introduce into society a greater evil than… the conversion of the law into an instrument of plunder.

No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable.  When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing respect for the law- two evils of equal magnitude, between which it would be difficult to choose.

..if under pretense of organization, regulation, protection, or encouragement, the law may take from one party in order to give to another, help itself to the wealth acquired by all the classes that it may increase that of one class, whether that of agriculturalists, the manufacturers, the ship owners, or artists or comedians; then certainly, in this case, there is no class which may not try … to place its hand upon the law, that would not demand its right of election and eligibility, and that would overturn society rather than not obtain it. Even beggars and vagabonds will prove to you that they have a incontestable title to it.

From The Law By Frederic Bastiat first published in 1850

I cannot avoid coming to this conclusion- that there are too many great men in the world; there are too many legislators, organizers, institutors of society, conductors of the people, fathers of nations, etc., etc.  Too many persons place themselves above mankind, to rule and patronize it; too many people make a trade of looking after it.

I am acting with regard to it in the spirit that animated a celebrated traveler. He found himself in the midst of a savage tribe.  A child had just been born, and a crowd of soothsayers, magicians, and quacks were around it, armed with rings, hooks, and bandages.  One said- “This child will never smell the perfume of a calumet, unless I stretch his nostrils.” Another said- “He will be without the sense of hearing, unless I draw his ears down to his shoulders.” A third said- “He will never see the light of the sun, unless I give his eyes an oblique direction.”  A fourth said- “He will never be upright, unless I bend his legs.”  A fifth said- “He will not be able to think, unless I press his brain.”  “stop!” said the traveler.  “Whatever God does, is well done; do not pretend to know more than He; and as He has given organs to this frail creature, allow those organs to develop themselves, to strengthen themselves by exercise, use, experience, and liberty.”

God has implanted in mankind also all that is necessary to enable it to accomplish its destinies. There is a providential social physiology, as well as a providential human physiology.  The social organs are constituted so as to enable them to develop harmoniously in the grand air of liberty.  Away, then, with quacks and organizers! Away with their  rings, and their chains, and their hooks and their pincers! Away with their artificial methods! Away with their social laboratories, their governmental whims, their centralization, their tariffs, their universities, their State religions, their inflationary or monopolizing banks, their limitations, their restrictions, their moralizations, and their equalization by taxation! And now, after having vainly inflicted upon the social body so many systems, let them end where they ought to have begun- reject all systems and try liberty- which is an act of faith in God and His work.”

From the concluding page of Frederic Bastiat’s The Law, first published in 1850.

.. any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law. To produce the same result for different people, it is necessary to treat them differently. To give different people the same objective opportunities is not to give them the same subjective chance.  It cannot be denied that the Rule of Law produces economic inequality-  all that can be claimed for it is that this inequality is not designed to affect particular people in a particular way.

It may even be said that for the Rule of Law to be effective it is more important that there should be a rule applied always without exception than what this rule is.  Often the content of the rule is indeed of minor importance; provided the same rule is universally enforced.

from The Road to Serfdom by F. A. Hayek