TorteDeForm

Justinian Lane

Why is predictability so important to the "reform" movement?

Here's an interesting take on why the "reform" movement pushes so hard for "predictability" in the civil justice system.

What these advocacy groups generally want is “certainty.” For example, from the article:

"Justice Hunstein was very, very unpredictable," said Dan Pero, president of the American Justice Partnership, offering an explanation for why the group targeted her. There was concern, he said, that Hunstein was a judge the partnership "could rely on" to correctly interpret the law.


They don’t want justice, or proper determinations. They want to know that whatever it is that they are currently doing will be immunized. This is certainly to the benefit of large, existing businesses in the industry – whatever it is that they are doing becomes the industry standard, and de facto reasonable. This discourages smaller start-ups that might internalize the costs more – there is no benefit to such an effort. In other words, the big boys are happy with the current model of cost-externalization, and don’t want there to be any incentive to internalize them, and by extension, any incentive to compete with them on these grounds.
Clearly, such a situation benefits the big companies in the industry more than the little companies. It stifles competition and innovation by removing rewards. And of course, the big companies got big by being good at the current cost-externalizing process. It’s an advantage that is easier to hold on to than having to face true competition. (Emphasis added.)

Source: The Bell Tower: The invisible hand of the persecuted minority

The article also talks about how "reformers" go after judges who they can claim are soft on crime.  The epitome of this attack occurred in Texas, where I recall one Supreme Court candidate being assailed for not being tough on crime and therefore not a good choice for the bench.  In Texas, the Supreme Court never hears criminal cases, as those go to the Court of Criminal Appeals.

Justinian Lane: Author Bio | Other Posts
Posted at 8:01 PM, Jun 05, 2007 in Civil Justice | Understanding the Tort "Reform" Movement
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Comments

Why is predictability so important to the reform movement?

For the same reason that predictability was important to Plato, Aristotle, Montesquieu, Paine, Adams, and Justice Holmes. It's called the "rule of law." Look it up: you might find yourself being a reformer if you read more classics and fewer anonymous blogs looking for ways to thoughtlessly and reflexively attack reformers.

Posted by: Ted | June 6, 2007 8:53 AM

Justinian: Every claim comes with a burden of proof. In the case of civil litigation, the burden is the preponderance of evidence standard. In simple language, that means, based on the evidence there is a 51% chance the plaintiff is correct in the opinion of the jury.

The second established legal doctrine is that negligence requires a failure by the defendant to carry out a duty to the plaintiff. Today, duty in negligence claims comes from the foreseeability of harm.

For example, if one mistakenly pushes the gas pedal and accelerates a car to 90 mph on Fifth Avenue, at the crowded noon lunch hour, what is the chance of injuring a pedestrian? It is close to 100%, I assume you agree.

Make the same mistake on a rural West Texas road at 3 AM, during a snowstorm, what are the odds a pedestrian may be injured there?

You may think of this burden as a detection limit. Any injury with less than a 51% chance of taking place cannot be fairly detected by the process of proof required by the burden.

Any plaintiff verdict for an injury with a less than 51% probability violates the right of the civil defendant to the procedural due process right to a fair hearing. Now that the Supreme Court has also held that the civil defendant has substantive due process rights, the verdict violates the Fifth Amendment Takings Clause.

For example, 100,000 have walked through a store parking lot over the past 5 years, since it opened. A mugger beats a customer and steals their money. What is the real world chance of being mugged in that parking lot? It is 1 in 100,000. A second mugging immediately after the first has a 2 in 100,001 chance probability. Below a 51% probability, the jury cannot detect a duty of the store for premises security. Only after 51,000 of 100,000 people are mugged in the parking lot does the minimum foreseeability exceed the ability of the court to detect it. The store held responsible is the victim of violations of procedural process and substantive due process rights by the court.

The analogy is that a microscope with a resolution limit of 1/1000 inch cannot reliably show an object with a diameter of 1/10,000 inch.

Posted by: Supremacy Claus | June 6, 2007 11:20 PM

Ted: I am going to ask for a personal favor. When addressing a civilian like Justinian, I would appreciate it if you took a civil tone.

If a civilian is missing something from your mind bending, sicko, criminal cult indoctrination in law school, you do better trying to carefully explain it than to take the supercilious tone you do.

That said, one of the biggest values added by the rule of law is predictability. We agree. Indeed, equal and fair treatment has predictability at its core benefit.

That makes writings central. American reliance on case law reduces predictability. Stare decisis raises the injustice of this corrupt, biased, pro-lawyer rent system. It violates Article I Section of the Constitution, and all equal protection doctrines. It violates the Establishment Clause by its religious origin of arguing by authority. The latter form of argument has no validity in formal logic. It depends on which side of the bed the criminal cult judge got up on. That is no way to run a modern economy or society.

Posted by: Supremacy Claus | June 8, 2007 6:24 PM

Justinian: I appreciate David's civil tone toward you. He can control his frustration with a civilian.

I believe that David is asking you to shun me, a cult method of enforcement. He cannot address the point without personal remark. This is cult. I welcome such personal remark because it shows frustration in the traverse upon traverse. I would love it in a tribunal, since such remarks would end his case.

The burden of proof and foreseeability are separate concepts in his cult mentally crippled mind. They are related statistically, and legally since Phillip Morris v Williams in 2007.

I ask that David name the correct numbers in a lottery with 1/50,000 winners, as the store is asked to foresee a mugging in a premises security claim. I ask him to do so with 51% certainty and correct choice rate, the real meaning of the burden of proof standard.

Return to his dice example. A duty depends on rolling a die to a 3. It will take place 16% of the time, only after many rolls of the die. It has a 16% correct foreseeability. A jury is asked to assess the presence of duty for the purpose of a negligence verdict. The duty requires rolling a 3, or a 16% chance, it is impossible for a jury to render a verdict with 51% certainty when the defendant failed to roll a 3. The defendant had a 16% chance of correctly foreseeing rolling a 3, with 84% uncertainty. If David wants to reduce the damages by their foreseeability, we could discuss a verdict equal to the 1/100,000 chance of being mugged in a store parking lot. So the plaintiff should collect $10 on a verdict of $1 million in damages. We can discuss that, but I am not sure, it is just.

If David does not like this requirement, he may lobby for Palsgraf to be reversed by statute. He may be with the dissent of Judge Andrews, where duty is to the world, and has no statistical foreseeability determinant. That is just not the law as it stands today.

That intelligent people are blinded to the obvious is a tribute to the competence of the criminal cult indoctrination. It is so good ...? David does not even know he underwent it.

Posted by: Supremacy Claus | June 8, 2007 8:50 PM

Justinian: I will not ask you to shun David. I believe in freedom of speech even with those with whom I disagree and whom I am trying to help.

However, this statement is misleading, "It is 100% foreseeable, not undetectable, that one will do so." It is not 100% foreseeable that 1/6 rolls of the die will be a 3.

The probability of that number being thrown is subject to the probability mass function, described here,

http://en.wikipedia.org/wiki/Binomial_distribution

They mention the dice example of David specifically.

I think law school erased David's high school math, and left this cult victim with fourth grade math level, that math level required to count money. I think he is a very bright person, just mentally crippled by his sicko, criminal cult indoctrination in law school. I hope he sues his law school for the devastation inflicted on his once fine intellect.

Where one gets rehab from such brain damage, I have no idea. Perhaps, if he were sued for failing to foresee a rare accident, the trauma might jar high school math back into his brain.

I invite you to pray with me for his recovery.

[Justinian: The only math that ever made sense to me was geometry, so I'll let you guys hash this one out.]

Posted by: Supremacy Claus | June 8, 2007 9:57 PM

David: The mugging rate in a store parking lot is 1 in 50,000 visits. The mugging rate in the surrounding streets is 10 in 50,000. Does the plaintiff owe the store money for extra protection and the benefit of a reduction in the chance of victimization? The plaintiff does not owe money to the store. Why should the store owe the plaintiff anything, even if the crime rate on the premises is higher than on the street, unless the mugging is by an employee on duty? Why is the duty of protection from mugging that of a store, not in the security business. However, the police has no duty to protect the individual, when that is its official purpose?

The answer? Pro-lawyer rent seeking judges, victims of law school indoctrination, just made up a reason devoid of logic or justice to transfer money from productive providers to paper shufflers, at the point of a gun, in 1913. Then in an insurrectionist act of private law making, the dumb idea was enacted in the Restatement of Torts.

The pro-lawyer rent biased judges are the most vicious muggers. Their employers should be held accountable for their lawlessness and its foreseeable damages, with its 100% certainty.

Posted by: Supremacy Claus | June 9, 2007 5:09 AM

I think we have discovered a lawyer repellent. Math above the fourth grade level. David has let three remarks go unanswered, unusual for a member of such a chatty and disputatious profession.

David should rest assured. If he ever gets sued with a weak claim, I want to help point out its lawless, insane cult content, and the corrupt, lawless conduct of his judge to further the rent of the three lawyers determining the fate of his future and assets. I have patience. When David gets sued with a frivolous claim, all this will become crystal clear and easy to understand.

I order to get sued, he has to get off the blogs, act and get productive in the law. Also, he has to prevail and start making money. That is the real, non-pretextual reason everyone productive gets sued. They committed the malfeasance of earning money by helping, serving, or pleasing others.

Posted by: Supremacy Claus | June 10, 2007 8:27 AM

I hate to trot out a resume in an argument, but for S.C.'s info, I was taking DiffEq in high school.

1. Burden of proof is separate than foreseeability. It's a different question, asked at a different part of the process.

2. Philip Morris has nothing to do with these issues at all. Philip Morris was about the proper factors one can take into account in assessing punitive damages. Foreseeability was irrelevant to their analysis.

3. I don't need to name the correct numbers in the lottery. I just need to know the odds of the lottery. The die does not have 16% foreseeability; as I explained to S.C. once before, foresee and predict are not the same thing. I don't need to predict the outcome of an individual roll for it to be foreseeable that a particular number will come up. The probability on any one individual roll is indeed 16%, but that's irrelevant. It's not the correct question to ask.

Indeed, even S.C. realizes that, as he trotted out the hypothetical about Fifth Avenue. He asks about the odds of hitting a pedestrian, not the odds of hitting any one particular pedestrian.

4. Palsgraf provides no support for S.C.'s position. It's just name-dropping on S.C.'s part, in a desperate attempt to look to non-lawyers like he's not just making it up. Moreover, my argument is not that Andrews' position was correct.

5. I don't believe the store does owe the plaintiff anything in S.C.'s hypothetical. First, even assuming the store was negligent, the mugging is a superseding act. Second, Learned Hand, not Cardozo, can explain why to S.C.

Posted by: David Nieporent | June 10, 2007 3:42 PM

David: To keep it simple for Justinian, the legal word, "foreseeable," means, "predictable by the reasonable person." No?

If you do not believe the store owes anything to someone mugged in the parking lot, we agree. Forget the math. But, tell that to the huge premises security liability specialty in your profession. Are you saying these huge verdicts are unjust? If your answer is, they are unjust, I have no dispute with you. We are fundamentally in agreement. However, your profession is making a huge living from these claims, very much viable in all states.

I sincerely appreciate your serious reply. I still think there is some elementary misunderstanding on one of our parts. I will gladly retract any statement if facts warrant it.

True. The burden of proof is separate from foreseeability. It is a detection limit. The microscope has a detection limit, analogous to a burden of proof. Microscope differs a lot from bacteria. One is a huge metal object, the other a tiny biological object. The bacteria are analogous to the fact question asked of the jury and to the legal question asked of the judge. But they are related by the purpose of their use, microscope to look at bacteria, the burden to ensure a correct verdict on a claim of foreseeability based duty. If the bacteria are smaller than the resolution of the microscope, they may or may not exist in the field. That phrase "may or may not exist", by analogy, requires a verdict
for the defense, according to the Rules of Evidence, i.e. the injury may or may not have been foreseeable.
Learned Hand formula from Carrol Towing requires three predictions instead of one, making matters worse than Palsgraf. One has to predict how often a barge will break from its mooring over a decade. One has to predict the cost of preventing that breakaway over that decade. Then, one has to predict the injury in Palsgraf, to some passing ship or peer, and its precise cost, not just that someone will be injured, as in Palsgraf. This approach coagulated into the Coase Theorem. The latter utterly fails in the face of parties' fears, rages, and greed, as in Texaco v Pennzoil.

That leaves only the Rent Seeking Theory as the Grand Unifying Theory of Appellate and Legislative Decisions, best explaining anomalous and economically catastrophic errors of judges.

[Justinian: Thanks for keeping it simple for me. I are easily confuzed.]

Posted by: Supremacy Claus | June 10, 2007 5:16 PM

Justinian: The lawyer has to apologize to the owner of the law, the public. By their weasel misuse of bogus complicated language for simple ideas, they are stealing by rent seeking. Lawyer language is theft and lawless garbage. Worst, that trick was taught to them by French administrators of 1250 AD. The French origin of this scam makes lawyer talk appalling per se. All legal utterances, including the word, utterance, that is above the 8th grade reading level is void for illegality. The judge refuse to enforce that doctrine because they are both cult victims and enforcers.

[Justinian: Yet another thing to blame the French for.]

Posted by: Supremacy Claus | June 10, 2007 6:03 PM

"foreseeable," means, "predictable by the reasonable person." No?

No.

Posted by: Ted | June 11, 2007 9:26 AM

Ted: Yes, if one uses the dictionary. The Supreme Court has held that the dictionary definition is the definition of legal gibberish garbage. More than 100 times.

Here is a definition, not from a dictionary, but from a legal dictionary.

http://legal-dictionary.thefreedictionary.com/foreseeable+risk

If the minimum certainty required by the burden of proof is 51%, how can any rarer event be reasonably predicted?

You lawyers believe burden and foreseeability are unrelated. Risk of injury may be less than 51% in occurrence after the carelessness of the defendant. Give us your minimum acceptable rarity of injury. Is it 1/100, or 1/million. Give us the minimum rarity of injury for which a defendant should compensate a plaintiff deemed reasonable.

Here is a good counter-example that you might use to rebut me. I foresee that after the filing of a weak claim by the careless attorney, the defendant will suffer anxiety, time lost on the defense, distraction from productive activity, and expenses. I predict that with 100% certainty. For some reason, the defendant has no recourse. The defendant is precluded from filing a legal malpractice claim by the pro-lawyer, biased, rent seeking cult criminal on the bench, protecting his good pals, the careless lawyer, granting self-dealt immunity to the criminal cult, in violation of several provisions of state constitutions and the Federal Constitution. I predict with 100% certainty, that is unjust and corrupt.

Posted by: Supremacy Claus | June 11, 2007 7:50 PM

S.C.: I already stated that I did not believe the store ought to be liable for someone being mugged in the parking lot, but that normative view is not based on any issue related to foreseeability.

To reiterate what Ted said, and ignoring your made up Supreme Court citations, "foreseeable" does not mean "predictable" -- at least not the way you're using the word predictable. Really, I don't see why you're having such trouble with this one. It's a common English word. (In fact, as I noted, you applied it correctly in your Fifth Avenue hypothetical.)

Nor do the "Rules of Evidence" have anything to do with this discussion. They aren't relevant to the issue of foreseeability.

Nor is burden of proof a "detection limit." You explain the concept very well, but you apply it to a non-analogous situation. You know the classic statue of blind lady justice with the scales? Burden of proof has to do with weighing the evidence on each side of the case.

This question: "If the minimum certainty required by the burden of proof is 51%, how can any rarer event be reasonably predicted?" doesn't even make sense. It's just word soup. Again, we can foresee that a fair die has a 16% chance of ending up on '3'. That can be "reasonably predicted" regardless of what the burden of proof is. It's true beyond a reasonable doubt that we will roll a '3' 1/6th of the time. Instead of ranting about random delusions about cults, meditate on these statements. When you understand them, you will understand the issue a little better.

A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again.

Posted by: David Nieporent | June 12, 2007 6:33 AM

David: Cult indoctrination cannot be overcome without physical custody of the victim's body. Until the lawyer hierarchy can be arrested, put into re-education camps, and taught to respect the simple language of the Constitution, to stop their insurrection against it in furtherance of lawyer rent seeking, using even physically stressful measures? No logic or fact may persuade the victim.

Cult indoctrination with 800 years of refinement, so good, the victims have no idea they have undergone it? Too far gone.

I do know that once liberated from their ordeal, the former cult victims are always grateful.

Posted by: Supremacy Claus | June 12, 2007 6:43 PM

David: You and I both disagree with appellate courts as they see liability for criminal victimization of their invitees. They impose a duty to predict on the land possessor. Even if there is a mugging every single day, the odds of predicting a crime remains below 51% of all invitees. There is no duty of protecting guests from unknown assailants, except to enrich land pirates with pretextual, phony arguments permitted by the biased pro-cult enforcers on the bench. These are lawless, violate three Constitutional Amendments, and should not be permitted as an argument, under the Rules of Evidence.

See this decisions.

Tomas H. Urbano v. Days Inn of America, Inc.; Office Parks of Charlotte, Inc., d/b/a Days Inn Budget Luxury Motels; Commercial Management, Inc.; and Days Inn Budget Luxury Motels, No. 8126SC1121, in the Court of Appeals of North Carolina, decided September 21, 1982, reported at 295 S.E.2d 240.

Where it is reasonably foreseeable that criminal activity will occur on property, a possessor of land may be required to protect invitees from attack. The key to required security lies in the foreseeability of criminal attack occurring on the property. However, a possessor of land cannot be considered an insurer of invitees' safety.

Posted by: Supremacy Claus | June 12, 2007 8:09 PM

You know...so often David and Ted frustrate me with their persuasiveness...and their arguments that "the daily speacial" tort reforms benefit the consumer.

Then, Justinian and Cyrus frustrate me because their ideas of access to the courts often ignore the incredible costs of tort law to the every day consumer.

In fact, over time, I have come to realize that the true problem for the consumer is that they are only given two options...the status quo OR fully surrendering their rights to redress injury if harmed. I would like to talk about a compromise between the two options...and neither side seems disingenously opposed to compromise...

And every time, with 100% foreseeability...genuine dialogue and debate is interupted, and held hostage, by the beligerent, dillusional diatribes of Supremacy Claus.

Many others have thought they could rearrange the world to their own fantasy of how things could be with total disregard to the opinions and thoughts of others (fill this space with your favorite dictator or self proposed diety)....

why don't you just let the grown ups talk??? Go play war craft or something

[Justinian: I guess the question comes down to which is more important: Saving lives, or saving dollars?]

Posted by: john | June 13, 2007 6:21 PM

Justinian: Predictability is an essential utility service of the rule of law, like water and electricity. Without enforceable contracts, we have a barter economy.

Without some risk of punishment for predatory behavior by the strong, we have continual focus on personal security, and not on productivity. See Fallujah.

The unpredictability of meritless claims violates the law, and damages the economy. That is why the land pirate must be helped to stop hijacking the economy.

[Justinian: To be clear, I believe that liability should be predictable, but that damages should not. An actor should be certain that what he or she is about to do is or is not allowed.]

Posted by: Supremacy Claus | June 15, 2007 8:03 AM