Cyrus Dugger

Tort “Reform” Movement’s Take on Racism

Just got back from a short vacation. I’m refreshed and ready to launch back into the world that is Tort Deform. To warmly greet me in the blogosphere is a revealing (and ill-timed) post by David Nieporent of Overlawyered.

His post titled “Sticks and stones may break my bones, but names can make me rich” ridicules an African-American couple who were refused service and subjected to racial slurs for deciding to sue the store from which they attempted to make their purchase. The post, and the tone that it takes, is ironic in that it follows the recent fallout from Don Imus’s own racially disparaging remarks.

However, it is honestly nothing new. The framing of “over-victimization” used by the tort “reform” movement to attempt to disparage the civil justice system is part and parcel of a general conservative messaging campaign that disparages the entire concept of victimization (replacing it with themes of personal responsibility) in many other areas such as civil rights.

I’ll follow up with a more detailed post after I get caught up after my break, but I just wanted to flag this issue buy way of a quote from Nieporent’s post.

They then allege that, while waiting for that helpful clerk to sell them a watch, they heard McCrary curse at them, using a racial slur, and then stalk off. The helpful clerk immediately apologized, as did a sales manager. But nonetheless, this incident was so traumatic for the couple -- including the husband, who was a police officer -- that they not only felt too distressed to finish buying the watch, but they felt the need to return the items they had already purchased (link)

I can’t think of a more condescending reaction (at least that can be publicly published on Overlawyered) to an incident of outright racial discrimination.

More from Nieporent:

Now, assuming the Greens are telling the truth -- there seems to be substantial evidence supporting their version of events -- McCrary deserves to be condemned wholeheartedly, and the Greens were entitled to an apology (which they got). But that, of course, wouldn't allow them to cash in on this incident. So, instead the couple waited two years, and then filed a lawsuit demanding $5.5 million, claiming that the store had illegally violated their rights to make contracts because they were black. (link)

There’s a lot more to say here, but the most interesting issue is the framing of this incident. Nieporente takes a case of outrageous racial discrimination and frames it into an incident where the victims, who simply wished to purchase goods in a place of public accommodation, have somehow become villains.

The ability to enter restaurants and stores was one of the very rights that so many suffered and died for during the civil rights movement. It’s not inconvenient, as Nieporente attempts to frame it, but instead invokes the fundamental denial of equal citizenship that has characterized the great majority of this country’s history.

That Nieporent sees this incident as something that was merely inconvenient that didn’t really disrupt the ability of this couple to live their lives as equal citizens (let alone pursue happiness), or that did not legitimately affect their ability to complete their purchase, discredits him and his tort “reform” views/arguments more than anything that I can ever say.

More to come when I’m settled back in.

Cyrus Dugger: Author Bio | Other Posts
Posted at 12:41 PM, Apr 10, 2007 in
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You may think so. I may think the fact that you manage to misspell my name several times in one post doesn't reflect much on your care for the facts, and hence your credibility.

The Greens suffered a wrong. A retail clerk was rude to them. More than rude. Nasty. Vicious. Pick your adjective. No dispute there.

It's unclear why this should entitle them to use the government to transfer $5.5 million of wealth from Dillards' stockholders to the Greens.

They got an apology. They got multiple apologies. They got the nasty clerk fired. They got an offer of a discount, as any decent vendor will offer when one has a lousy customer experience. If they had asked for the merchandise in question for free, one might be inclined to be sympathetic. But $5.5 million?

This was not a case in which the company had a policy of not serving blacks and so threw them out of the store. This was not a case where the store manager did something to them. This was not a case of violence. This was a case where a retail clerk hurt their feelings. The worst thing the store could be accused of was not firing a clerk the first time she was rude to a customer. Why is that worth $5.5 million?

Do you just look at every situation where one person has a lot of money and think he ought to hand it to another person?

Posted by: David Nieporent | April 10, 2007 3:54 PM

David, are you disputing the award of $5.5 million, or do you believe they shouldn't have been awarded anything?

Posted by: Justinian Lane | April 10, 2007 4:16 PM

Hi David,

Unfortunately, your blog (Overlawyered) intentionally does not even refer to Tort Deform on your site by its real name. Instead, it not so originally and rather immaturely refers to it as "Bizzaro-Overlaywered."

Thus, I have to say that it is rather ironic you would complain about the unintentional incorrect spelling of your name on this blog.

As for your other comments, they pretty much do nothing to respond to my underlying point above.

Posted by: Cyrus Dugger | April 10, 2007 4:26 PM

Justinian, they haven't been awarded anything yet; that's the amount they're suing for. What I am saying is that such a demand is grossly disproportionate to the wrong they suffered. It's not clear to me that mistreatment by a low-level employee who clearly is not speaking for the company should legally entitle someone to any damages -- but had they sued for $500, or $5,000, I never would have said anything. It was the fact that they sued for an absurd $5 million that prompted the post.

As for Cyrus, your "underlying point" seems to be that the tort reform movement doesn't take racism seriously. Well, I don't speak for any "movement" -- but my personal response is that approval of the transfer of money from a deep pocket to a victim is not an appropriate measure of how seriously one feels about an offense. (Whether a racial offense or otherwise.) You can feel sympathy for someone without thinking they deserve to get rich. If someone falls on ice and breaks one's arm -- as I have done -- one can feel sorry for that person without thinking they're justified in suing the property owner, let alone that they're justified in seeking a huge award.

Posted by: David Nieporent | April 10, 2007 7:39 PM

David: Although I find Cyrus's left wing ideologue views intolerable, I have to agree. Can you stop referring to this site by a bad name, like a third grader out of debating points? It demeans you more than it does the site.

Ted used that term, as well.

If an epithet were to be uttered to an opponent, in a court, the judge would rejoinder it. The jury, with no idea about the case, would take the rejoinder as a signal, as to judge preference. Case over. It may prompt a legal malpractice suit by the client of the lawyer, the client with privity and standing. The lawyering expert would testify, name calling isn't lawyerly, nor is it persuasive, even to those on your side.

Posted by: Supremacy Claus | April 10, 2007 9:11 PM

Not every slight, real or imagined, has an economic value. David may not be disputing the award of $5.5 million, but I certainly am disputing it. If the slight suffered by the Greens has a dollar value (it would fall into the "does the boo-boo hurt?" or "did that mean man hurt your feelings?" category) and I would think that $500.00 would more than suffice.

The Greens did NOT suffer a physical injury, did NOT suffer an actual economic loss or any other tangible injury. If they have such low self-esteem that they suffered a real mental injury they need therapy, not money.

I've been reading your blog for some time now, and it appears that you feel that the way to improve society if for every wrong to result in litigation.

Posted by: Paul W Dennis | April 10, 2007 9:50 PM

Hi David,

So you feel that 5 million is an absurd amount? Since the tort “reform” movement spend its time and effort criticizing the decisions of juries of our peers in civil cases, let’s make you both judge and jury of this case.

What is the maximum amount of award that you feel this racial “inconvenience” could result in……without being absurd?

Posted by: Cyrus Dugger | April 11, 2007 10:24 AM

What is the maximum amount of award that you feel this racial “inconvenience” could result in……without being absurd?

As Potter Stewart said, I know it when I see it.

What you're asking, from a legal perspective, is how much hurt feelings are worth. (And yes, that's what we're talking about: hurt feelings. Badly hurt, because of the racial slur, but hurt feelings nonetheless.) $500, perhaps, in compensation for their inconvenience? Maybe $1,000, if I'm feeling especially generous with someone else's money? Doesn't your question present exactly the problem I often point out to Justinian? Namely, that non-economic damages are inherently arbitrary.

As I mentioned earlier, it's not clear to me why they're entitled to any money from Dillards, given the alleged facts of the case. There is very compelling evidence that this clerk was not acting on behalf of the company when she did what she did; hence, the worst thing Dillards is guilty of is giving her a second chance after she was rude to a customer before. I might not have done that if I were the store, but I don't think it ought to be actionable. What it ought to be is a matter of customer relations, not a legal matter. Which means that I'd have given them an apology and a discount. Which they were offered. So, playing jury, I would award precisely zero in punitive damages.

(Don't worry; they'll suffer plenty more punishment than that. They have to pay in the high tens of thousands of dollars to their own lawyer, and since 42 USC 1981 has a fee shifting provision, they also have to pay the Greens' lawyer a similar amount.)

Posted by: David Nieporent | April 11, 2007 2:46 PM

David, since noneconomic damages are entirely arbitrary, how can any figure be too high or too low? And how are you (or a group of legislators) more qualified than a jury to determine the maximum someone should receive?

Posted by: Justinian Lane | April 11, 2007 3:20 PM

David, since noneconomic damages are entirely arbitrary, how can any figure be too high or too low?

Turn the question around: since noneconomic damages are entirely arbitrary, how can any figure be right?

And how are you (or a group of legislators) more qualified than a jury to determine the maximum someone should receive?

Because the right amount, to the extent there is any "right" amount, is a question of public policy, and it's the job of legislatures to determine public policy.

(In theory, we could calculate noneconomic damages. We could survey people and ask how much they would require that you pay them in order to (e.g.) subject them to racial slurs. (I suspect that if you plucked 100 people off the street and said, "Can I call you names if I pay you $500," lots of people would make that tradeoff. Some people would hold out for more, but I think most would accept far less than $5,000,000.) In practice, I don't think we can do that. So we're left with arbitrary.)

Posted by: David Nieporent | April 11, 2007 4:44 PM

In a Monte Python skit, a customer entered an office to receive vicous personal attacks. The pre-paid time ran out, he had to leave or pay extra.

One way to determine the value of something is to auction it, see what the market says.

Posted by: Supremacy Claus | April 11, 2007 5:16 PM

Interesting how the comments on this topic tend to fall along political lines.

I don't know how anyone could not see that a $5 million lawsuit is disproportional to what these people experienced here, especially specifically from the store. It is also typical of these types of lawsuits to not target the actual perpetrator (the employee in this case) but the entity that has deep pockets (the department store).

I agree that such a case is worth anywhere from $500 to $5,000, but having your feelings hurt does not entitle one to become rich at a department store's expense. I don't recall "the right not to be offended" being included in the Bill of Rights.

Posted by: John Eberhard | April 19, 2007 9:55 PM

"Interesting how the comments on this topic tend to fall along political lines."

Democrats: In favor of minority rights.

Republicans: Opposed to minority rights.

Sorry, couldn't resist.

Posted by: Justinian Lane | April 20, 2007 1:40 PM

Justinian: The KKK was the terror arm of the Democrat Party. The criminal lover lawyer has replaced them. The criminal lover lawyers herd crime into minority areas. The resulting disparity in the minority murder rate has killed more minorities than the KKK lynchings by two orders of magnitude. By their rent seeking, the lawyer has destroyed the black family in the 1960's. He came after the white family in the 1990's. What we allowed to happen to the black family, well, the exact same thing will happen to all white families, and all the guaranteed resulting massive pathologies. Minorities should thank the lawyer and the party of the lawyer, the Democrat Party.

Posted by: Supremacy Claus | April 21, 2007 3:24 PM