Liability Lynching

As a civil liability trial lawyer for many years there is no doubt in my mind that the victims of negligent conduct on the part of civil wrongdoers should be fairly compensated for their damage.  Generally speaking, we all have a duty to exercise reasonable care to avoid negligently causing harm to others. We should therefore be held accountable for any damage if we violate that duty.

But accountability has its limits and liability for damages caused by negligence should likewise be reasonable. Civil justice, just like criminal justice, should be fair. No rogue jury in a court of law should be invested with the power to punish a culpable defendant with a damage award which is grossly excessive, motivated by emotion and thereby far beyond the bounds of reason.

One of the reasons why most people profess a dislike for trial lawyers is because of all the stories they hear in the news about runaway juries sweet talked by slick trial lawyers into awarding outrageous totally out of proportion sums to Plaintiffs’ as damage awards to punish defendants they don’t like.

Recently, for example, a runaway Florida jury slapped RJ Reynolds Tobacco Co. with a $23.6 billion dollars in “punitive” damages, and $16 million in “compensatory” damages award to the widow of a longtime smoker who died of lung cancer from smoking the defendant’s cigarettes.

Now, you’ll get no argument from me that the defendant was probably negligent for not adequately and properly informing consumers as to the lethal dangers of smoking, which negligence contributed in part to the cause of the decedent’s death, and therefore the company was liable to pay reasonable damages to compensate the widow’s loss for its portion of responsibility.

But $16 million in “compensatory” damages is unreasonable, and $23.6 billion in “punitive” damages is plainly outrageous, both motivated solely by anger and the fact that RJ Reynolds has deep pockets.

Civil juries should not be allowed to punish at whim defendants they happen not to like. Punitive damages in civil actions are not conducive to a fair system of justice. Punishment is for the criminal justice system.

I seriously doubt that the appellate courts will let this verdict stand, but that’s beside the point Even if they reduce it to a fraction it will probably still be excessive, and it won’t make up for all the time and money wasted in court. That jury should not have had the power to begin with.

The widow’s lawyers argued that the decedent became “addicted” to cigarettes and failed multiple attempts to quit smoking. So there is no question that he knew full well the dangers of smoking and his own negligent and irresponsible conduct was just as much or more the cause of his death than the defendant’s negligence.

Anyone who wants to quit smoking can quit smoking just like anyone who is fat can go on a diet and anyone on heroin can quit doing heroin. Of course quitting an “addiction” is not always easy but anyone who is aware of the dangers and is motivated to quit can quit.

Frankly, in my opinion, anyone who still smokes today, given what widlely is known about the lethal dangers of smoking for the last half century, is not merely negligent but out of his mind.

The fact that the decedent in this case didn’t quit is no valid excuse to punish RJ Reynolds. Its duty was to adequately warn consumers of the dangers of smoking. To the extent that it failed to do so it should be held accountable for its part in the loss.

"We hope that this verdict will send a message to RJ Reynolds and other big tobacco companies that will force them to stop putting the lives of innocent people in jeopardy," declared the widow’s lawyer.

But that is not the purpose of a civil jury deciding a civil lawsuit. Their job is not to send messages; it’s to fairly compensate the victims of negligence according to the evidence.

If people would only stop smoking, or never start in the first place, the tobacco companies would either have to find new products to sell or go out of business. Thus, the free market should be allowed to solve the smoking problem.

This case is the result of a liability lynching.

Parasite Panic

Have you ever spotted a fat, juicy, satisfied blood sucking tick firmly attached to your dog, and pulled it off with a pair of tweezers watching its legs flailing about wildly before you dispatched it? 

That’s what parasites do when you suddenly deprive them of their hosts. They panic.

And that’s just what the alarmed parasitical politicians in Washington are doing today as they rush to decide what to do about America’s corporate “hosts” that are fed up with over taxation and are moving overseas to avoid it.

The politicians are panicking.

It’s parasite panic.

When Americans, including American corporations, look for entirely legal ways to reduce their enormously burdensome tax liability, the political parasites panic. They don’t like being deprived of their “hosts.”

“Like most of my colleagues here today, I have deep concerns about the practice of companies moving overseas for the primary purpose of avoiding U.S. taxes.  Average Americans and companies that remain in America are rightfully outraged when companies leave the United States, leaving the rest of us to foot the bill,” whined Republican U.S. Senator Chuck Grassley this week to the fervent approval of his fellow parasites on both sides of the aisle.    

An inversion involves a U.S. corporation buying or setting up a smaller company abroad, then shifting its tax home base to that company’s country, which typically has lower tax rates than in the United States. The strategy can put foreign earnings out of the reach of the Internal Revenue Service and make other tax savings possible that can boost a multinational company’s bottom line.

The chorus of panicking parasites on Capitol Hill calling for an end to corporate inversions grew louder as the Senate Finance Committee held a hearing on the issue of American companies reincorporating abroad, and legislators proposed new punitive measures against inverted companies.

Senator Ron Wyden, Democrat from Oregon and chairman of the committee, said that chief executives from several companies in the process of inverting were invited to testify, but none accepted the offer.

Why am I not surprised?

Would you accept the offer of a parasite to attend his picnic if you knew you would be the host?

Wyden described corporate inversions as a “plague,” and called for retroactive legislation that would eliminate substantial tax benefits of many of the cross-border deals announced over the last year. “The inversion virus now seems to be multiplying every few days,” cried the parasite. “The underlying sickness continues to gnaw away at the American economy with increasing intensity.”

The political parasites in Washington actually believe in their hearts that innocent hardworking Americans trying to legally reduce their taxes amount to a plague and a virus. That’s because they are panicking parasites afraid of losing their hosts.

But it’s the parasites that are killing the golden goose. They’re the ones gnawing away at the American economy – not the profitable corporations and hardworking individuals.

So just like with the fat blood sucking tick you pulled off your dog …

… It’s parasite panic. 

Damned if you do; Damned if you don’t

Statist government laws often conflict with logic to the point where people might be punished just as much for obeying the law as for not obeying the law.  The hapless victims of statist authority can be damned if they do and damned if they don’t.

Consider, for just one example, the case of Los Angeles area homeowners, Laura Whitney and her husband, Michael Korte.  On the same day the State of California approved mandatory outdoor watering restrictions with the threat of $500 fines, they received a letter from the City of Glendora threatening a $500 penalty for not watering their brown lawn.

"Despite the water conservation efforts, we wish to remind you that limited watering is still required to keep landscaping looking healthy and green," says the letter, which gives the couple 60 days to restore their lawn.

If they water their lawn enough to restore it and keep it green they risk being hit by the state with a $500 fine. If they try to avoid that fine and abide by the state’s new drought busting public service slogan: “Brown is the new green,” they get hit with a warning from their city that they face a $500 fine.

It’s water your lawn or pay a fine or don’t water your lawn and pay a fine.

"It's almost crazy because one agency is telling you one thing and another is forcing you to do the opposite," said another resident.

"It seems to me those cities aren't using common sense," opined Democratic California Assemblywoman Cheryl Brown. "It's too bad you need a law."

Yes, of course it’s crazy. Statist laws often don’t make the slightest bit of sense, but no, the last thing we need is yet another statist law, because with statist government authority, too often it’s a situation in which... 

... you are damned if you do and damned if you don’t. 

Mooning Over Mars

I respect Buzz Aldrin. He, and Neil Armstrong, the first human beings to ever walk upon the surface of the Moon, were brave men. After all, there was a likely possibility that they would never come back from that mission, that they would perish 240,000 miles away from planet Earth.

The American funded NASA Apollo Moon program, conducted during the late 1960’s, culminating in landing men on the Moon, was costly, difficult and exceedingly dangerous.  As Mr. Aldrin explains, “First of all, what got us there was the tireless effort of some 400,000 people who shared a universal dream.”

Yes, it was all of that together with many $billions of dollars in taxpayer money, which Mr. Aldrin neglects to mention. And just what exactly did we American taxpayers get, (aside from bragging rights), for all that effort and all those $billions of dollars?

Aldrin candidly answers that question: “Back in July 1969, I stood on the talcum-like lunar dust just a few feet from our home away from home, Eagle, the lunar module that transported Neil Armstrong and me to the bleak, crater-pocked moonscape…. Standing there and soaking in the view, I called it as I saw it: "magnificent desolation."’

“As Neil and I walked upon the surface of the moon at Tranquility Base, we satisfied a vision held by humankind for centuries,” Aldrin added. “And as inscribed on the plaque fastened to the ladder of our lander: "We Came in Peace for All Mankind."’

So the short answer to the compelling question is:

Nothing! 

No gold; no silver; no fertile land; no abundant resources whatsoever; nothing at all of any tangible value; only a big sphere of dust and rocks; and some pretty pictures of "magnificent desolation," plus a “feeling of awe”  at the fact that we satisfied “a vision held by humankind for centuries” to put a man on the moon.

“America's triumph was viewed as a success for all humankind,” Aldrin exudes. “People expressed their collective pride by declaring ‘We did it!’ -- There was an aura of ownership of the achievement.’”

Yes we did it.  That was 45 years ago and the average American taxpayer has still received no tangible benefit from spending $billions of dollars to put human beings on the surface of the Moon for a few hours so that they could hop around in the low gravity environment, hit a few golf balls, and marvel at the lovely view of mother Earth way out there in the black endless vacuum of space.

“Standing on that harsh, desolate, yet magnificent terrain, stealing precious moments, I looked back at Earth. Everything I knew and loved lay suspended on a far away and fragile blue sphere that was engulfed by the blackness of space.” says Aldrin. “I couldn't have imagined anything more desolate -- knowing it hadn't changed in hundreds of thousands of years. You couldn't find any place like that on Earth. The airlessness; Brilliant sunlight illuminated the dust, which was everywhere.”

That’s right, Buzz. Aside from the pretty view, there is really nothing at all to love on the surface of the Moon. There’s no atmosphere, no oxygen, no water, no plants, animals -- nothing that we all know and love here on Earth. You see, the fact is that human beings are not adapted to live on the Moon. In order to live on the Moon we’d have to first bring all the things that we need to survive from the Earth.

Despite that costly lesson in economics, and unnecessary exercise in hubris, Buzz Aldrin now says that we American taxpayers should be doing exactly the same thing, only this time by sending a bunch of human beings to the surface of Mars. Of course, it’s easy for him to say. The $billions won’t be coming out of his pocket.

“For America, another destination is calling,” declares Aldrin.  America's longer-term goal should be permanent human presence on Mars… The moment to begin could be on the occasion of the 50th anniversary of Apollo 11's touchdown on the moon… We can make a courageous, Kennedyesque commitment to America's future in deep space. The U.S. President could utter these momentous words: '‘I believe this nation should commit itself, within two decades, to commencing an America-led, permanent presence on the planet Mars.’"

I say: Why?

Not once does Mr. Aldrin explain exactly what the average American taxpayer will get – how we will benefit, that is -- from the folly of sending human beings to the surface of Mars, another desolate orb in space just like the Moon.

He’s calling for us to put up the “funding,” but not bothering to mention the tangible payoff justifying the enormous investment.  

Buzz Aldrin walked on the Moon and we still have nothing tangible to show for it aside from a few pleasant nostalgic memories of American space cadets on the Moon.

Now he’s mooning over Mars. 

Government Taking Without Due Process

The Fifth and Fourteenth Amendments to the United States Constitution mandate in pertinent part that “No person shall … be deprived of … property without due process of law.”  

Due process of law requires notice to the person from the government that the government is claiming the right to take the person’s property; a hearing in a court of law presided over by a judicial authority to determine whether the government has a proper legal claim against the person’s property; and the right of the aggrieved person to appeal the decision of the judge to a higher court.  

This means that only judges and not legislators or bureaucrats have the authority to decide whether the government has a right to claim a person’s property as a fine or penalty for violating a law.  

The founding fathers of this nation, in regard to providing for the proper administration of justice to all persons, intended that due process of law be a safeguard from any arbitrary taking of property by the government outside the sanctions of the law, and it is the judicial branch of the government that properly determines the law – not the legislative or executive branches.

But over the many years since the Fifth Amendment was ratified, governments everywhere have been steadily chipping away at the due process of law requirement safeguards; so much so that today, in many instances, especially in civil as opposed to criminal matters, the government simply claims the legal right to seize property without bothering to observe due process.

The police, for example, in many jurisdictions today, simply seize automobiles, houses, and other property based upon mere suspicion that an offense has been committed in connection with the property, without providing notice or hearing in a court of law. They take and keep the property, under the dubious “authority” of civil forfeiture laws, laws which violate the Fifth Amendment, even though the person who owns the property has not been tried and convicted of any crime.

Now, the federal Environmental Protection Agency (EPA) is claiming that it has the right to garnish the wages of individuals who have merely been accused of violating its rules, all without the cumbersome necessity of first obtaining a court order after a judicial hearing, i.e., providing the person with traditional due process of law. 

In short, the government agency believes it can take a person’s property after determining the legality of doing so without the participation of a judge. It’s like the EPA has now become the judge, jury and executioner all rolled into one regarding the administration and application of its own rules.

"The EPA has a history of overreaching its authority. It seems like once again the EPA is trying to take power it doesn’t have away from American citizens,” explains U.S. Sen. John Barrasso, R-Wyo.

This new claimed government authority would give the EPA “unbridled discretion" over the process of challenging fines, opined David Addington, group vice president for research at the conservative Heritage Foundation. The rule not only puts the burden of proof on the debtor, rather than the agency, but also allows the EPA to decide whether a debtor even gets a chance to present a defense before picking whomever it chooses to serve as a hearing officer.

It’s just one more of the ever escalating examples of statist government taking without due process. 

Let’s Victimize the Victim

What if there was a law that made it illegal to remove a bullet from the body of a gunshot victim, or a knife from the body of a stabbing victim, or flushing poison from the body of a poisoning victim, because such would amount to unlawful tampering with evidence?

The gunshot victim would be required by law to keep the bullet lodged in his body until after the trial of the shooter in order to “preserve” the evidence of the crime. Failure to abide by this law would render the victim a criminal felon himself just as much so as his assailant.

Likewise, the stabbing and poisoning victims would be equally obligated by statute to keep the knife sticking in his body, or the poison in his blood stream, until their assailants could be tried for the crime. “Tampering” with the evidence by pulling out the knife of flushing out the poison would make the victim a criminal.

What if the justification for such a law was to protect shooting, stabbing and poisoning victims from assailants by properly preserving the evidence of the crimes for trial? 

The very idea is absurd, isn’t it? No sane lawmaker would even dream of passing such a law right? It would be a law that victimizes the victim.

Well, there are a lot of insane lawmakers out there and one of them, a Republican statist from the State of New Mexico, has proposed just such a law. 

No, it doesn’t victimize gunshot, stabbing or poisoning victims, but it’s equally stupid, insane and egregious as it would victimize the victims of rape or incest.

That’s right. A law, proposed by state Rep. Cathrynn Brown (R) makes it illegal and criminal for the innocent victim of incest or a rapist to get an abortion on the grounds that doing so would constitute “tampering with evidence” in the suspect’s trial.

So the unfortunate victim of the crime of rape or incest who happened to get pregnant would be compelled by this law to carry her pregnancy to term. 

Failure on her part to do so would render her a criminal – guilty of a third degree felony. And anyone who assisted her in getting an abortion would also be guilty of a felony punishable by up to three years in prison.

“New Mexico needs to strengthen its laws to deter sex offenders,” explained Brown with a straight face. “By adding this law in New Mexico, we can help to protect women across our state.”

I don’t think Rep. Brown is as much concerned with protecting rape and incest victims, however, as she is with justifying the passage of an anti-abortion law. She obviously couldn’t care less about the lives of crime victims. 

So in her insane and dogged pursuit of a statist right wing religiously oriented anti-abortion agenda, she’s very quick to proclaim: 

“Let’s victimize the victim.” 

When Government Spending Made Sense

Did you know that in the year 1803 President Thomas Jefferson presided over the purchase of 828,000 square miles (529,920,000 acres) of land west of the Mississippi River, the so-called Louisiana territory, consisting of all or part of 15 present day U.S. states and two Canadian provinces, by the government of the United States of America, for the sum of only $15 million dollars – just $300 million in the value of today’s dollars?

For that we Americans got all of today’s Aransas, Missouri, Iowa, Oklahoma, Kansas and Nebraska, parts of Minnesota, most of North and South Dakota, northeastern New Mexico, northern Texas, and the parts of Montana, Wyoming and Colorado east of the Continental Divide, plus Louisiana west of the Mississippi River, including the City of New Orleans.

You see, in 1803 our politicians were frugal and Thomas Jefferson got us real value for our money. That’s when government spending made sense. He bargained with France for more than half a billion acres – about a third of the land in present day America – for a paltry .04 cents per acre.

Sadly, today it’s a far different story. Our nation is now in debt to the tune of more than $17 trillion, $583 billion, and $720 million dollars – a sum which is rapidly escalating by the second. Federal spending during just this year alone as of today’s date totals more than $3 trillion, $514 billion, and $738 million dollars.

President Jefferson, in 1803 could have purchased  the entire planet Earth for less than a fraction of what our government is spending in 2014. 

Compare that with today’s government spending sprees. Last year, for just one example, the Pentagon spent $572 million to buy only 30 Russian-built military helicopters for Afghan security forces. All of that money has been flushed down the toilet as America is pulling out of Afghanistan and the Taliban will be taking over the country and the helicopters.

Jefferson spent only about half that much money and we lucky Americans received in perpetuity about a third of the land in our entire nation. We’ll own that land forever and it cost us less than 30 Russian helicopters abandoned in Afghanistan. Would you rather have 828,000 square miles of prime American heartland or 30 Russian made helicopters for twice the price to donate to Afghani terrorists?  

Our politicians today are spending on a cost adjusted basis in just one day more than what Thomas Jefferson spent during his entire presidency and the average American citizen is getting absolutely nothing to show for it.

Today we have American unmanned military drones costing almost $4 million each falling out of the sky and crashing like dead flies at the rate of more than 400 drones lost in only the last 12 years. They’ve slammed into homes, farms, runways, highways, waterways and, in one case, an Air Force C-130 Hercules transport plane in midair.

The military owns about 10,000 of these unmanned drones, and by 2017, the armed forces plan to fly drones from at least 110 bases in 39 states, plus Guam and Puerto Rico. No one in the government expects any of these drones to last very long. They’re disposable.

Our politicians today have no qualms about disposing of $4 million dollars like so many dirty tissues of Kleenex. I think it’s about time that they and their legions of government bureaucrats started spending again like it was done in 1803.

That was when government spending made sense.