July 12, 2007
From the desk of Jane Galt:I'm no lawyer, but . . .
I think Jonathan Zasloff is off-base here:
Corrie's family is now suing Caterpillar, which made the bulldozer, for damages, on the grounds that Caterpillar knew or should have known that the sale would enable the IDF to commit human-rights violations. For Ron Coleman, guest-blogging at Overlawyered (and sub silentio backed by Bainbridge), this is absurd:Yes, a law professor is making this argument. Okay, a law professor who blogs at Huffington Post, but still? No, he's not a new face; but he certainly remains a brazen one. For in our bizarro world, right is a very special kind of wrong -- the promotion of violence (by the likes of Rachel Corrie) is peace;the sale of construction equipment (by Caterpillar) is murder; and fallacious legal argumentation is the product of one of the “the top 20 legal thinkers in America."To my mind, this confuses the legal basis of the suit with the facts of this case. It seems to me perfectly reasonable as a general matter to argue that if a corporation knows that its product will be used by a government purchaser to commit human rights violations, then that corporation can be sued using an aiding-and-abetting theory. If the company doesn't know but should have known, then that is a closer case, of course, but certainly not implausible.
One relevant precedent here is the case of Doe v. Unocal, in which the Ninth Circuit held quite appropriately that if Unocal had paid the Myanmar government to provide it with "security" for its oil pipeline, knowing that the Myanmar Army's concept of "security" is the widespread massacre of any villagers who dare resist and the forced labor of hundreds of others, then Unocal can be held liable.
The problem, then, isn't the principle: it's the fact that it is being used by people like Corrie (or rather, her family), who may have been not a victim of human rights abuses, but rather a facilitator of them because of her support for Hamas. And it is being used against Israel, whose human rights record, for all its faults, many people consider to be quite good and certainly a far cry from egregious violators such as, say Myanmar.
Thus, if there is a criticism of Chemerinsky here. it is that he has exercised poor judgment in accepting this client. He might respond that even were this to be so, he needs to be involved in the case to protect the principle. Many of the most important civil rights cases were litigated on behalf of truly despicable clients. Hard cases make bad law.
Conservatives like Bainbridge should think about it this way: say a corporation sells sophisticated intelligence-gathering equipment to Fidel Castro's internal security forces. They, of course, use it to find a pro-democracy activist and then brutally torture her. Is it so unreasonable that the vendor should be held liable?
Leaving aside the rights and wrongs of the Israel-Palestine conflict--I'm afraid I'm suffering from an extended bout of vertigo and just don't have the strength to be screamed at today--it seems to me that Zasloff is begging the question. Is it unreasonable to think that a vendor should be held liable if it sells Castro's government equipment to spy on human rights activists? I kinda think it is. Mr Zasloff wants to hold companies accountable for enforcing a collective judgement about Castro's regime that we aren't even willing to enforce collectively--by, say, banning sales of such stuff to Cuba*, or getting rid of the offending government.
He also skips over what seems to me to be the main objection to the lawsuit, which is that there is no way that Caterpillar could have reasonably known what the IDF was going to do with that bulldozer, and hence, no grounds for a suit.
Even in cases where we all agree that governments are human rights abusers, and where we agree that companies are legally and morally responsible for preventing those human rights abuses by denying governments their tools of oppression, there is a spectrum of corporate guilt. If you supply Zyklon B to the Nazis**, you are clearly moral filth whose bankruptcy and disgrace I will not mourn one little bit. On the other hand, if some colonel in Pinochet's Chile had dubbed himself "El Lápizetero" and terrified prisoners by poking their eyes out with pencils, I would be disinclined to slap a judgement on the manufacturer who sold Chile a couple of gross of Number Two's.
Bulldozers are, it seems to me, closer to the pencils than the Zyklon B. The IDF has all sorts of other users for bulldozers, like building fortifications, that pretty much everyone agrees are legitimate functions of the state. Moreover, in order to stop the Israeli government from obtaining them, you would have to ban all sales of construction equipment to Israel, since otherwise the IDF would just buy used ones on the local market, in transactions over which US courts have no jurisdiction. So I think that Mr Zasloff has it backwards. It is irrelevant whether Rachel Corrie, or the IDF, had the right of things. It was not reasonable to expect Caterpillar to deny the state of Israel construction equipment in order to keep the incident from happening.
* Actually, I presume we do ban them; this is a hypothetical.
** Sigh. No, I am not comparing the IDF to the Nazis. Please take off your Godwin Counter and reset the filter from "ultra-sensitive" to "reasonable human being".
Posted by Jane Galt at July 12, 2007 9:57 AM | TrackBack | Technorati inbound links"); ?>Presumably, this line of argument could be used to suggest that automobile manufacturers not sell their products to anyone who has had an auto accident, because there is a greater than average risk that an automobile in the hands of these individuals would be more likely to be involved in another accident resulting in injury or death.
This line of argument might also be used regarding the sale of automobiles to muslims, who might represent a greater than average risk that the vehicle would be turned into a car bomb. It might also be extended, in this case, to the sale of propane tanks, gasoline in containers, nails, nuts and bolts, screws, syringes and cell phones, etc. since all of these items might be used to turn the automobile into a bomb.
How about selling or renting trucks to hispanics, because of the greater tha average liklihood that they might be used to smuggle either drugs or illegal aliens into the US.
The possibilities appear endless.
Posted by: Ed Reid on July 12, 2007 11:16 AMBecause people have been severely injured by having rocks thrown at them, we must sue God for creating the rocks.
Posted by: Peter on July 12, 2007 11:22 AMAs long as something is legal to buy, I think generally you can not sue someone for selling it because they may suspect someone will do something perceived as wrong with that good. To do otherwise, as people have noted, breaks the whole capitalist system down as we discrimminate left and right based on our own reasons. Or maybe he's arguing that the state should be the one to discriminate? Money for food for the palestinians, so the palestinians can use their own money on guns and bombs, but no tractors for the isrealis!
That will teach them!
Posted by: cdub on July 12, 2007 11:31 AMRachel Corrie is known as Saint Pancake on Little Green Footballs.
Posted by: Peter on July 12, 2007 11:38 AMAbout sales of intel equipment to Cuba: "Actually, I presume we do ban them; this is a hypothetical."
IANAL, but from what I have been briefed at work, all sales of "munitions" and "defense items" for export require approval from the State Department, and in some cases, the DoD.
Posted by: ech on July 12, 2007 12:07 PMLook, ADM sold wheat to Israel, knowing full well that the wheat would be made into bread, and that bread is eaten by the soldier who drove the bulldozer. Does Zasloff think it appropriate for Corrie's parents to sue ADM?
In fact, Dow Chemical supplied the fertilizer that help grow the wheat that ADM supplied to Israel that was made into bread that fed the soldier who drove the bulldozer. Does Zasloff think it appropriate for Corrie's parents to sue Dow?
Need I continue to show how absurd Zasloff's post is? Kleiman and the other folks who post on that site are not the sharpest tools in the box - I don't know why Jane would stoop to debunk their idiocy.
Posted by: Al on July 12, 2007 12:53 PMThat is an excellent point, Megan.
When one contracts with SLORC for security services, one cannot but know that you're getting vicious government thugs.
When one sells a bulldozer to Israel, however, one cannot know that it will be used for anything even slightly questionable - even if one agrees, arguendo, that bulldozing smuggling tunnels and the houses they erupt in is bad, surely the government of Israel also uses bulldozers for innocuous road construction and civil engineering.
Unless Caterpillar was selling them specially modified Human Rights Abuser 4000 models, I can't see any basis for a suit.
(And even if they were, we have the facts of the matter as far as any possible judgement, which Zasloff openly isn't talking about, so they don't apply in this context.
So if Zasloff was right, which I don't think he could be, the case still has roughly zero chance of success, even granting standing.)
Posted by: Sigivald on July 12, 2007 12:53 PMIn the end, the lawyers are the only winners. We will never, in this country run by lawyers for their own benefit, see "loser pays."
Posted by: MarkD on July 12, 2007 1:07 PMAs long as something is legal to buy, I think generally you can not sue someone for selling it because they may suspect someone will do something perceived as wrong with that good.
Agreed this was the same intellectually bankrupt “legal theory” used to persecute the firearms industry in the 1990’s. Manufacturers, sellers, and distributors who had obeyed all of the existing applicable laws were sued by cities and State governments for the harmed caused by people who misused the products in a way that already against the law. The gun control zealots like Giuliani and Clinton couldn’t get their way through the legislature so they hoped to either bankrupt the industry with lawsuits that were either dismissed or overturned on appeal (but only after costing the industry millions in fees and discovery costs) or force them into a settlement agreement.
Not only should we go to a loser pays tort system, I think we need a more universal statute like the Protection of Lawful Commerce in Arms Act in which no industry who has obeyed the applicable law can be sued by a third party because someone who legally purchased their product misused it.
I don't see how taking this case is necessary to protect the principle, given that it would be a very creative stretch to argue that it is being violated. It seems the opposite -- that it would trivialize truly serious complicity with human rights violations.
Posted by: Person on July 12, 2007 1:24 PM"I think generally you can not sue someone for selling it because they may suspect someone will do something perceived as wrong with that good."
Ah, ask MADD/SADD about that. Though, to be sure, we aren't holding the brewer responsible, they do hold the bartender / bar owner responsible.
Posted by: kristian on July 12, 2007 1:25 PMOh, and FWIW, Jane_Galt, providing Zyklon B in and of itself wasn't objectionable, since there are legitimate uses for it (i.e. pesticide). I believe the crime there was that the Nazis asked for it *with the safety precautions removed*. Normally, Zyklon B has a smell so you know to "get **** out" when you notice it, but the manufacturer complied with a request not to put the warning smell in, from which they could have inferred what it was going to be used for.
From Wikipedia:
"It consisted of hydrocyanic acid ... a stabilizer, and a warning odorant that were impregnated onto various substrates ..."
"Zyklon B was used in the concentration camps initially for delousing to control typhus. The chemical used in the gas chambers was deliberately made without the warning odorant."
(emphasis added)
Posted by: Person on July 12, 2007 1:30 PMAh, ask MADD/SADD about that. Though, to be sure, we aren't holding the brewer responsible, they do hold the bartender / bar owner responsible.While I’m not a fan of MADD, I think the distinction is that in the case of dram shop laws, there is a statute which makes it a crime to sell (or in some cases provide) alcohol to a person who is obviously intoxicated. If we have a law in place that says you cannot sell surveillance equipment to Cuba and someone does so, I don’t think many of us would object to the prosecution of a company who broke that law. But if we haven’t made it illegal (such as selling bulldozers to Israel), then someone who obeyed the law should be sued for it because of what some third party did with the goods they legally purchased. Posted by: Thorley Winston on July 12, 2007 1:42 PM
"He also skips over what seems to me to be the main objection to the lawsuit, which is that there is no way that Caterpillar could have reasonably known what the IDF was going to do with that bulldozer, and hence, no grounds for a suit. "
The IDF has a long, well-documented history of using bulldozers to destroy homes of innocent Palestinians. While Israel as a whole puts bulldozers to a predominantly non-human-rights abusing use, making the bulldozer more like a pencil than xyclon B, the IDF in specific is not as cut and dried. While the IDF usually uses bulldozers for fine purposes, the destruction of homes is a non-negligible portion of their use.
"Moreover, in order to stop the Israeli government from obtaining them, you would have to ban all sales of construction equipment to Israel, since otherwise the IDF would just buy used ones on the local market, in transactions over which US courts have no jurisdiction. "
That is not necessarily true. The US puts all sorts of end-use restrictions on products that must be transferred with any sale. For instance, a Canadien living in Canada may buy some high tech equipment legally, but selling it to China could be a violation of US law, even if done while in Canada or China. You could require sales of all bulldozers to come with agreements that the bulldozer never be sold to the IDF, and that the bulldozer always include the agreement in any resale. This binds all future owners against selling to the IDF. Admittedly,it is pretty ridiculous. Israel could build bulldozers themselves, or just use tanks.
I suspect that the real motive is not to win the case, but to gain publicity for a cause, or, possibly it is some legal maneuver to get some kind of testimony into an official record.
Posted by: Njorl on July 12, 2007 2:56 PMWhen one sells a bulldozer to Israel, however, one cannot know that it will be used for anything even slightly questionable - even if one agrees, arguendo, that bulldozing smuggling tunnels and the houses they erupt in is bad, surely the government of Israel also uses bulldozers for innocuous road construction and civil engineering.
Furthermore, even if the homeowner has a legitimate suit against Caterpillar, that has nothing to do with the plaintiff here. The deceased wasn't a victim of a human rights violation; she actively jumped in front of a bulldozer.
Posted by: CC on July 12, 2007 3:00 PMWhy doesn't Caterpillar sue these people for damaging its brand?
Posted by: dearieme on July 12, 2007 3:33 PMIt isn't quite as cut and dry as anyone probably would like it to be.
First, as as already been pointed out, if it is established that a significant portion of bulldozers owend by IDF are used for human rights violations, then that puts on notice any seller of bulldozers what they are supplying, to whom, and to what use those bulldozers might be put.
Further, even absent that general knowledge, there could be actual knowledge - i.e. to use your pencil example, I could come to you and ask you if I could buy some pencils so I could use them to torture the eyeballs out of my prisoners - now you KNOW what I will use them for - and therefore you are an accessory if you supply me the means of committing the crime.
So at the very least, perhaps there is a question of fact for a jury - what did the company know or what should they have known about the end use of the dozers?
Unless you have all of the facts and, looking at all of those facts, conclude that NO reasonable person could conclude that Caterpillar knew what the dozers would or could be used for, then it is a question of fact, and thus only a jury (or a judge in a bench trial) can decide that issue.
Now, it is a separate issue if you want to declare that companies generally should not be held responsible for what the buyers of their products do with them if the products themselves are not primarily and only torture / killing instruments. I don't really buy that issue, either - it would let clearly guilty companies off of the hook by letting them sell the innocuous and then wash their hands of it (oh, sure, we sold these PERFECTLY LEGAL dental drills to the Bannana republic of WeTortureAndLikeITVille (population 1,200) - it isn't our business what they wanted to do with 10,000 dentists drills...
Posted by: Disgusted Beyond Belief on July 12, 2007 3:59 PMEch, the State Dept. is another entity that tends to have a sliding scale of good v bad. I wouldn't want my fate placed in their shabby hands.
As far as the IDF regularly abusing the rights of humans, well... perhaps you should go there and visit awhile before you mount that High Hoarse and start bleating about the poor Palestinians. This is a country and a people fighting for their life against a foe that literally surrounds them. I see no problem giving them tanks, and letting the tanks run through the houses that are used for firing platforms, hideouts and observation posts, whether the people living there allow it or not.
I'm sure I'm not endearing myself to some of you, but that I care little about. This Moral (Liberal) Majority type of attitude is something that, if the Israelis let influence how they fight against this terrible enemy, will be wiped out. As a policy of wiping out houses just to be 'mean,' I am sure the IDF does NOT do. The polilcy of the Palestinians has been to teach their children that Jews are beneath animals, and Christians are about a shadow above them; that to kill them makes you blessed. And this is what they've done for over 25 years, and they must live with the consequences of making a generation of children and young adults total hate mongers.
Because this hate against the West by Muslim countries has been around for at over 40 years (from firsthand experience), I wonder if we are able to understand this Arab attitude towards us, and what the implications are. If you are squishy anywhere, you will be nothing but cannon fodder to the Islamic terrorists who wish to turn the entire world Islamic following Sharia, and those that don't cease to exist, by any means (there are a few Human Rights violations for you).
Posted by: What Chutzpah on July 12, 2007 4:25 PMWhile I am profoundly anti-Zionist (I want all the Jews to come here to the US---bring 'em in, bring 'em all, more, more, I'm still not satisfied, bwa-ha-ha-ha-ha!) I don't think the Corries have a legitimate case here. I'd love to see them get some payback, but I don't think this one will work.
Posted by: Technomad on July 12, 2007 4:35 PMI really don't buy the "they are doing for the publicity" argument. On it's face, the case is a joke and, by extension, those pursuing it are seen as jokes. That is not the kind of publicity I would want, but then that is just me.
Posted by: Yancey Ward on July 12, 2007 4:53 PMwhatever happened to actually suing those responsible for something, rather than the innocent bystander that sold them their bread? Oh, wait, the breadmaker has more moeney...
Jane, the godwin-o-meter has a re-set?
who knew? :D
Posted by: D on July 12, 2007 4:55 PMEven if we say, for the sake of argument, that the IDF was using the bulldozers to commit human rights violations, and that Caterpillar knew this, Corrie still doesn't have standing. *Her* human rights weren't being violated, because *she* didn't own, or live in, any of the houses being bulldozed. She's just a dippy bitch who stood in front of a bulldozer and got run over by it.
The IDF doesn't have a program of running over pro-Hamas activists with bulldozers, although it'd be kind of funny if they did.
Posted by: Dan on July 12, 2007 5:33 PMWe interrupt this debate for a special announcement:
The claim that the IDF's use of bulldozers against Palestinian structures unconditionally constitutes "human rights abuses" is NOT an incontorvertibly established fact. We repeat, it is NOT an incontrovertibly established fact.
That is all, and we apologize for the interruption. Back to our regularly scheduled dialogue.
Posted by: anony-mouse on July 12, 2007 5:34 PMNow, it is a separate issue if you want to declare that companies generally should not be held responsible for what the buyers of their products do with them if the products themselves are not primarily and only torture / killing instruments. I don't really buy that issue, either - it would let clearly guilty companies off of the hook by letting them sell the innocuous and then wash their hands of it (oh, sure, we sold these PERFECTLY LEGAL dental drills to the Bannana republic of WeTortureAndLikeITVille (population 1,200) - it isn't our business what they wanted to do with 10,000 dentists drills...
That sounds sensible enough to me. What's clearly guilty about selling dentists' drills?
And what would a country with 1,200 people want with 10,000 dentist drills even if they were using them for torture? How long do dentist drills last? If they are single-use objects for torture, presumably they're single-use objects for drilling teeth too. (I've read accounts of dentistry pre-local anesthetics, in terms of pain they're as bad as any torture account I've read, though generally torture lasted longer).
The responsibility for torture rests with the people who do the torture.
And how would it feel if you were the Ministr of Health of some country desperate for more dentist drills, but no one would sell you any because they were scared that you'd give them to the Police and the Police would use them for torture and the seller would get sued?
If selling an object that could be used for torture is wrong, then you've basically shut the entire economy down. A moral system that requires us all to be our brothers' keepers is really an immoral system, it places impossible requirements on innocent transactions and would prevent many beneficial trades.
Or in other words, a company that sells 10,000 dentist drills to Bannana republic of WeTortureAndLikeITVille is innocent.
This is the flip side of suing IBM for having sold equipment to the Nazis.
Posted by: m. on July 12, 2007 6:48 PM"Conservatives like Bainbridge should think about it this way: say a corporation sells sophisticated intelligence-gathering equipment to Fidel Castro's internal security forces. They, of course, use it to find a pro-democracy activist and then brutally torture her. Is it so unreasonable that the vendor should be held liable?"
The funny thing about this hypothetical is that the author apparently knows so little about conservatives that he fails to realize the answer from most of them would be: yes it is ridiculously unreasonable.
Posted by: Sebastian Holsclaw on July 12, 2007 7:16 PMHi all--
Here's my response:
http://www.samefacts.com/archives/law_notes_/2007/07/tort_law_101_a_reply_to_jane_galt.php
Posted by: Jonathan Zasloff on July 12, 2007 8:11 PMZasloff:
You should allow comments on your site. Also, for one so dismissive of Jane's understanding of law, the examples you provide leave something to be desired. I'll quote for those who don't want to copy-and-paste:
For example, the vast majority of products that are found to have defective designs are legal: a jury, however, can determine that another product is just as useful but far less dangerous, and so the first product is defective. On consider a slip-and-fall in a supermarket: it's not illegal for the market to leave, say, the broken baby food bottles in the aisle. But if a customer slips on them and sustains damages, then the market is liable even if it violated no safety regulations. Similarly, it's not illegal for a physician to commit malpractice: but she can be sued for it.
If we stipulate for the sake of this discussion that these scenarios actually do or should (separate questions!) entail liability, these examples still lack relevance. The case we're considering is much more similar to one in which a supermarket has been reasonably diligent in policing the aisles, but a bad actor has picked up a frozen turkey and clobbered a customer with it. Or consider a glassware maker sued because a vase it produced was intentionally shattered by an angry florist who then picked up a shard and stabbed someone. It's a struggle to imagine how medical malpractice would ever be relevant, but let's say that an evil patient with nerve damage has regained the use of his arm in a doctor's care and gone on to strangle someone else with it. I hope that seems ludicrous to you, but if not, let's move to an example that might hit closer to home.
Are you in favor of suing a defense attorney for malpractice because he successfully defended a criminal who left the courthouse and immediately committed another identical crime? If not, do you see the inconsistency with the examples you provided?
Posted by: Jess Austin on July 12, 2007 9:54 PMI like the comparison to selling surveillance equipment to Castro's Cuba.
So why is that argument not used to inconvenience a country that forced some 10-12 million of her citizens to seek refuge across her northern borders? Is it my imagination, or are we still rewarding Mexico with NAFTA and most-favored-nation trading status? If you want to look for someone responsible for human rights violations, you don't have to look that far south.
Posted by: Brad K. on July 13, 2007 1:40 AMMaking parties to a commercial transaction deduce the motives of their customers is an absurd standard. This kind of standard makes the law incomprehensible and assigns responsibility for torts in a random manner. The guilty party should be sued for their acts rather than someone who is peripherally connected. This peculiar assignment of resposibility benefits only trial lawyers searching for deep pockets. Sellers shouldn't be required to have ESP in order to do business.
Posted by: shamus on July 13, 2007 6:23 AMI think law licenses should be heavily taxed to make up for the harm lawyers cause to society, and the taxes compensate the businesses and individuals injured.
Posted by: MarkD on July 13, 2007 8:34 AM" A moral system that requires us all to be our brothers' keepers is really an immoral system, "
It never ceases to amaze me how people always assume the wrong answer to the question, "Am I my brother's keeper?" The answer is "yes".
It is the reason we sit in air-conditioned buildings tapping away at keyboards instead of sitting naked in a tree eating bugs.
The question in doubt is not "Am I my brother's keeper?", which is undoubtedly answered by yes. The question in doubt is, "Who is my brother?"
Posted by: Njorl on July 13, 2007 8:37 AMI agree a high standard of proof should be required to hold someone accountable as an accessory. I don't think companies should be worrying about what strange and nefarious uses their products could be put to with every sale. Perhaps something on the order approaching actual knowledge should be the standard. I.e. if you know for a fact that the item you are selling to someone is going to be used in a crime, then you are liable if you complete the transaction. Or if you really should have known because it was so obvious (my example above, where a country that is a known torturer using dental drills (and in fact has no dentists) orders 10,000 dental drills from you) - I'm sorry, morally, you ARE an accomplice to that crime. If someone is in the street getting beat up by someone else and then the beater asks if they can buy a tire iron from you so they can bash the victim in the head, you don't just get to sell it to them, then walk on, and be considered innocent. Under our law, you would be an accessory to murder and would face potentially life in prison or the death penalty (depending on the state). I don't see how changing the entity from a person in the street to a corporation suddenly changes that culpability. And no, you don't get to claim innocence if you don't ask what the tire iron is going to be used for when it is obvious. That is the way the law works. If anyone wants to argue that that person in the street is actually innocent, I'd be very curious to hear the argument.
(And we can set aside whether or not the IDF actually commits human rights violations - we are talking about the principle here, not a specific case).
Posted by: Disgusted Beyond Belief on July 13, 2007 8:48 AMYes DigustedBB, you are correct. If Isreali saw a woman standing in font of the house and said to the tracto co. on the corner, "we'd like to buy a tractor right now" perhaps you'd have a point. As is, the example at hand does not fit your extremely tight definiation of being an accesory. How nice of you to extrapolate outward and make the argument that it does anyway.
The point is, I can agree with you if we can prove for a fact that they know they are aiding in the imminent death of someone perhaps you have a point (but then again this is a nation state we're talking about who the US government says we can trade with, so you're point is moot again...if it were an individual maybe). The same standards should perhaps apply here as with slander and libel, meaning you have to have damn good proof that they not only knew they were lying (in the case of libel) but they acted with that disinformation out of malace. Those two things are very hard to prove and only apply under very very tightly contrived circumstances.
Posted by: cdub on July 13, 2007 10:53 AMNjori - I can't believe your paternalistic attitude! Do you think that it is only males who can be your brother?!! What about the other 50% of the world's population? Can't they be your Brother!!?
Look, if a woman can be dissed for being thought of as nothing more than a 'second income provider,' let's not pile on and disregard the feelings of the stronger gender, androgyny notwithstanding! (TIC)
Posted by: falkoyn on July 13, 2007 11:11 AMOddly enough, DBB, I have no specific points of disagreement with your latest post...and neither can I think of any way that the grouds thereof would would have any applicability to the situation under discussion.
The two key points of fact are: (1) Caterpillar sold construction equipment to a sub-entity of a government that is on friendly terms with the United States; (2) Rachel Corrie chucked her own fragile body in the path of the equipment. Unless the lawyer pressing this forward on the behalf of Ms. Corrie's survivors has evidence-in-hand that there was a bad-faith basis to (1), this is nothing more than a fishing expedition and, as some have already noted, an excellent argument for a loser-pays rule of tort.
Posted by: anony-mouse on July 13, 2007 11:51 AMI'm not saying this particular case has any merit - absent proof that Caterpiller either 1) knew the use in advance for the items were criminal or 2) there was general knowledge that those particular items were used for criminal activity by that government, there really is no case.
But this is not much of an argument for a loser-pays tort system. Caterpillar likely has in-house salaried attorneys who handle legal matters, so they really aren't paying anything extra to defend the case, and even if they were, frankly, they can afford it and it won't even make a tiny blip in their bottom line.
The problem with a loser-pays system is that it tends to give a massive advantage to the big players who already have a massive advantage to begin with. And just because you lose a suit does not mean the original suit was frivolous - oftentimes there are very close questions when it comes to trial (if there wasn't a close question it would not have made it to trial - 97% of cases settle before trial because of that). But close means you can be basically right, but still lose the case - if you then had to pay the winner's legal fees - well, let's just say that unless you were rich to begin with, you pretty much could never file a lawsuit. Our system, flawed though it is, is much better at giving "the little guy" his or her day in court.
Posted by: Disgusted Beyond Belief on July 13, 2007 1:12 PM"Njori - I can't believe your paternalistic attitude! "
Don't you mean "fraternalistic"?
Posted by: Njorl on July 13, 2007 1:16 PMAn in house salaried attorney so they aren't paying any extra?
Wow, that's great. So because there are a bunch of opportunistic lawyers out there requiring Caterpillar to higher a team of full time attorneys, it's ok to sue them because it's not consuming any more resources?
Posted by: cdub on July 13, 2007 1:43 PMAnd just because you lose a suit does not mean the original suit was frivolous - oftentimes there are very close questions when it comes to trial (if there wasn't a close question it would not have made it to trial - 97% of cases settle before trial because of that). But close means you can be basically right, but still lose the case - if you then had to pay the winner's legal fees - well, let's just say that unless you were rich to begin with, you pretty much could never file a lawsuit.
We occupy different worlds, then.
I don't know where the 97% figure came from, but assuming it's correct for the sake of the argument: It is highly likely that some substantial portion of this 97% are potentially frivolous but settled out of court because the defending party assesses the cost of legal defense as exceeding whatever terms the claimant is willing to settle upon.
These costs are a long ways from free, even when extracted from large corporate entities, for at least two reasons:
1. Multiply a frivolous claim settlement by a very large number, and you have a Lilliputan effect.
2. These costs, being a dead-weight loss, are necessarily passed on to the rest of us in the form of a higher cost of goods and services.
"Being rich to begin with" would not be a precondition for filing a law suit against wealthy entities in a loser-pays system; it would, however, force the claimant to think very carefully about whether he has a serious wrong that the courts and money can rectify, and reduce the present tendency to abuse the civil process as a glorified instant lottery system.
Posted by: anony-mouse on July 13, 2007 2:02 PMThe figure of 97% comes from so many different sources in law school and out I really don't remember where I first heard it. Trials are expensive. In a sense, trials are for the close issues - and to settle the law - where the law is already settled or the issues aren't close, you can usually tell the probable outcome of a trial, or at least the risks of an outcome, and so parties chose to settle based on that information.
And keep in mind that even if you do have a perfectly valid suit, it can be hard to prove - either because of the inherent nature of the suit or even because of nefarious actions on the part of a company - destroying documents, refusing to comply with discovery completely, etc. Probably there are far more valid lawsuits never filed for various reasons than there are frivolous ones actually filed. A "loser pay" system would just reduce the number of valid lawsuits filed even more.
And as far as costs to all of us, well, look at the costs to everyone in nations where there basically aren't lawsuits against companies - like China - where products kill babies or waste dumping wipes out entire communities - what exactly does that cost you? We pay more for our products ultimately because companies, for fear of lawsuits, pay more money to make our products safer.
And "being rich to being with" IS a precondition for many lawsuits, sorry to have to inform you. Most claimaints could never afford to file suits on their own - they need a large lawfirm to do it on a contingency fee basis for them - costs up front, before a single dime is paid, can be in the tens or hundreds of thousands of dollars for even a simple medical malpractice suit, for example. And what if it is a close issue, one where say you only have a 70% chance of winning at trial. You are already out of work from whatever injury befell you. You spend years on the suit, you are out hundreds of thousands of dollars, and then, in the end, if you lose, you have to then pay hundreds of thousands more to the other party. Could you take that risk if you did not have the money to cover those costs? I sure couldn't.
Tell me, why should I pay for your legal costs in a valid, non-frivolous lawsuit against you?
And as for frivolous claims, guess what - there are already rules in place to make losers pay for costs of other parties for frivolous claims, so we can leave those out of this discussion. So corporations don't have to pay legal costs for frivolous claims. Only for meritorious ones (win or lose).
Cbub - companies need legal departments for more than just defending against lawsuits.
Posted by: Disgusted Beyond Belief on July 13, 2007 3:16 PMIsrael, on "humanitarian" grounds (!) supplies water and electricity to Gaza, knowing full well that said water and electricity will be used by Hamas and other terrorists to cobble up attacks against Israel. Are they themselves liable for those attacks? Or have they just gone really soft in the head?
Posted by: Robert Speirs on July 13, 2007 4:03 PMAnd as far as costs to all of us, well, look at the costs to everyone in nations where there basically aren't lawsuits against companies - like China - where products kill babies or waste dumping wipes out entire communities - what exactly does that cost you? We pay more for our products ultimately because companies, for fear of lawsuits, pay more money to make our products safer.
In China, you can potentially get the death penalty for some of this stuff that's been in the news lately. Somehow, I think that might just be a stronger deterrent than tort, yet these things are occuring anyway. Reason: What they have at present is an enforcement problem, due to growth in industry that has grossly outpaced the ability of the regulatory state to police it.
It's not a comparable entity for purposes of this discussion.
Tell me, why should I pay for your legal costs in a valid, non-frivolous lawsuit against you?
In a perfect world, you wouldn't. In a perfect world, I would never have to defend myself against a frivolous suit launched by you, either. This being the non-perfect world, a balance needs to be struck somewhere in between the non-perfect outcomes, and I'm not convineced that the present scales are balanced particularly well.
Posted by: anony-mouse on July 13, 2007 5:10 PMThe important thing is that one ISM protester has been dealt with effectively. Unfortunately there are still far too many of them walking around, aiding and abetting ongoing attacks against Jews and others, helping to establish a caliphate.
End the ISM, hold people accountable for crimes against humanity. Hang traitors now! Anyone who knowingly aids or abets an Islamist or Socialist organisation is guilty of a crime against humanity and should do the Spandau ballet. Zasloff and the Corries are on that horrifically long list.
Posted by: hey on July 14, 2007 1:22 AMDisgusted Beyond Belief said
But this is not much of an argument for a loser-pays tort system. Caterpillar likely has in-house salaried attorneys who handle legal matters, so they really aren't paying anything extra to defend the case, and even if they were, frankly, they can afford it and it won't even make a tiny blip in their bottom line.
Which completely ignores the small companies and individuals who are sued. These folks don't have staff attorneys or fat bottom lines.
The eagerness of people like Disgusted Beyond Belief to get at the Caterpillars of the world causes them to ignore the damage frivolous lawsuits cause to these individuals and small companies.
Posted by: TJIT on July 14, 2007 3:30 AMJane,
I AM an attorney. The following statements of yours:
"Bulldozers are, it seems to me, closer to the pencils than the Zyklon B"
and
"It was not reasonable to expect Caterpillar to deny the state of Israel construction equipment in order to keep the incident from happening"
are completely contradictory.
I am guessing this case will be tossed quickly.
Good call not going to law school. You would not have done well.
Posted by: adr on July 14, 2007 11:31 AMA relative of mine is an attorney, and a few years back she and her firm defended an above-ground-pool maker in a lawsuit filed by a man who dived head first into the pool and broke his neck. The pool water was only 3 feet in depth. The paramedics who took him to the hospital testified that the man told them how he injured himself- by diving into the pool.
Take a guess who won the lawsuit.
Posted by: Anonymous for the Comment on July 14, 2007 11:35 AMSorry - I misread the comment and that was the basis for my confusion. In my haste I read it as "not UNreasonable" for some reason. Please ignore the above.
Posted by: ADR on July 14, 2007 11:43 AMI.e. if you know for a fact that the item you are selling to someone is going to be used in a crime, then you are liable if you complete the transaction. Or if you really should have known because it was so obvious (my example above, where a country that is a known torturer using dental drills (and in fact has no dentists) orders 10,000 dental drills from you) - I'm sorry, morally, you ARE an accomplice to that crime.
So now sellers are obliged to check out the country of the purchasers of any drill bits to see how many dentists they have? And how likely is it that a country has no dentists or no dental nurses? What does the dictator of this mythical country do if he gets a toothache? If a country is rich enough to buy dentist drills for torture, instead of say using the Khmer Rogue methods of things like biting ants and fire, then it's rich enough to have dentists. There strikes me as no basis for believing a reasonable person would have thought otherwise.
Sorry, but you've still not convinced me that selling 10,000 dentist drills makes one an accomplice to torture.
If someone is in the street getting beat up by someone else and then the beater asks if they can buy a tire iron from you so they can bash the victim in the head, you don't just get to sell it to them, then walk on, and be considered innocent. Under our law, you would be an accessory to murder and would face potentially life in prison or the death penalty (depending on the state).
Different example from your theoretical cases. There the beater says they want the tire iron to bash the victim in the head, and presumably you can see them doing the beating.
However, I know of no evidence that IDF said to the Caterpillar sales guy "Can you please sell me a bulldozer so we can commit human-rights violations?" And I really doubt that the IDF made enquiries over the bulldozer's abilities to crush activists - after all, it's a piece of heavy machinery so even if the IDF wanted it for the express purpose of crushing people to death it's not like they would have needed to ask.
Holding Caterpillar responsible, or our mythical dentist-drill-maker responsible, for human rights violations is like holding the seller of tire irons responsible if someone just wanders into the shop and says "Can I have a tire iron please?", without mentioning their intention and then later murders someone with the tire iron.
Look, think about it. How many things that are sold cannot be used to hurt someone? Any thing heavy can be used to bash someone about the head, not just tire irons - Roald Dahl once wrote a story about a woman who committed murder with a frozen leg of lamb. Anything flammable such as books can be set on fire and applied to the victim's feet - I recently read a book by a survivor of the Khmer Rogue who was tortured by being suspended above a fire. Most household cleaners are extremely painful if swallowed. Nearly anything made of fabric can be used to induce suffocation. Chillies or chili powder is extremely painful if applied to the eyes. Electricity is painful or fatal so nearly any electronic equipment could be used as a torture weapon. Anything glass can be used to cut. Do you really want to live in a world where you can't go to the supermarket without being interrogated as to your plans and state of mind?
Posted by: Tracy W on July 15, 2007 6:16 PMRecently the Federal Government agents arrested several store clerks and owners in Georgia for “knowingly” selling items to be used to make meth. The items bought undercover included coffee filters, batteries, and lighter fluid. I don't know the outcome of that case even though it struck me a pretty silly, but the Feds believe you may be responsible for selling perfectly legal material if it may be used illegally.
Now it is well known that bulldozers have been used to illegally demolish houses, tear up roads, and destroy orchards in Israel's occupied territories. Many international organizations (Amnesty International, Red Cross / Red Crescent, Doctors Without Borders, ...) have decried the practice. There are countless United Nations resolutions condemning the practice. If Caterpillar willingly sells bulldozers to Israel knowing that track record then they are willfully aiding Israel commit illegal acts against Palestinians. The danger that a crime will be committed is or should be known.
They are like that bartender selling drinks to a drunk who drives. No problem if the drunk makes it home OK. It is when the drunk doesn't make it home OK that he better get a lawyer. So if the bulldozers are used for legitimate purposes then OK. It was the illegitimate purposes that initiated this lawsuit.
Posted by: Mr. Fusion on July 16, 2007 1:19 PMNow it is well known that bulldozers have been used to illegally demolish houses, tear up roads, and destroy orchards in Israel's occupied territories. Many international organizations (Amnesty International, Red Cross / Red Crescent, Doctors Without Borders, ...) have decried the practice. There are countless United Nations resolutions condemning the practice.
If there really is a law capable of being illegal, then it must have two components:
(1) A capable enforcement authority.
(2) A reasonably equal application process for all under the jurisdiction of said authority.
International law so-called, particularly as administered by the UN, regularly falters on the first point and has an utterly dismal record on the second, particularly when it comes to Israel versus almost anyone else. The historical track record of most NGOs is equally faulty; and since they have no position in (1), their contribution to (2) is essentially that of the amicus brief -- interesting, and ocassionally very useful, but it is neither witness under oath nor binding upon the court.
Moreover, many of the IDF's allegedly criminal actions against Palestinians have essentially been anti-terror operations against a terrorist entity that neither the UN nor the associated NGOs are willing to acknowledge as such, for various partisan reasons.
If that is the logical basis of your argument for finding Caterpillar culpable under jurisdiction of US tort law -- keeping in mind that the US is on officially friendly relations with the state of Israel -- then it is a very poor basis.
Posted by: anony-mouse on July 16, 2007 2:08 PMReminds me of the book "Liability, The Legal Revolution and it's Consequences" by Peter W. Huber
He points out the massive unintended consequences of Tort reform.
"The Founders can hardly be faulted for their intentions, which were honorable, or their dispositions, which were kindly. But they were remarkably naive and optimistic about the legal system in particular and the world in general, and much further from omniscience than they so earnestly believed.... They thought they were dealing with a mule, which if prodded judiciously in the rear would proceed forward. But the beast was really an octopus, with no discernible rear to speak of, and capable of the most unpredictable reactions from the most unexpected directions."
Makes for good, if scary reading.
Bob Durtschi
Posted by: Robert Durtschi on July 17, 2007 11:44 AMReminds me of the book "Liability, The Legal Revolution and it's Consequences" by Peter W. Huber
He points out the massive unintended consequences of Tort reform.
"The Founders can hardly be faulted for their intentions, which were honorable, or their dispositions, which were kindly. But they were remarkably naive and optimistic about the legal system in particular and the world in general, and much further from omniscience than they so earnestly believed.... They thought they were dealing with a mule, which if prodded judiciously in the rear would proceed forward. But the beast was really an octopus, with no discernible rear to speak of, and capable of the most unpredictable reactions from the most unexpected directions."
Makes for good, if scary reading.
Bob Durtschi
Posted by: Robert Durtschi on July 17, 2007 11:44 AMReminds me of the book "Liability, The Legal Revolution and it's Consequences" by Peter W. Huber
He points out the massive unintended consequences of Tort reform.
"The Founders can hardly be faulted for their intentions, which were honorable, or their dispositions, which were kindly. But they were remarkably naive and optimistic about the legal system in particular and the world in general, and much further from omniscience than they so earnestly believed.... They thought they were dealing with a mule, which if prodded judiciously in the rear would proceed forward. But the beast was really an octopus, with no discernible rear to speak of, and capable of the most unpredictable reactions from the most unexpected directions."
Makes for good, if scary reading.
Bob Durtschi
Posted by: Robert Durtschi on July 17, 2007 11:45 AMNo, Njorli, I did mean pater-
Also, TIC = Tongue In Cheek...:-)
Posted by: falkoyn on July 18, 2007 10:29 AM