Law & Justice: September 2005 Archives

The worst part about the gun siezures in New Orleans following Katrina is that, contra the National Rifle Association and the Second Amendment Foundation, they aren't arbitrary at all.

Two national gun rights groups yesterday joined individual Louisiana gun owners in a federal lawsuit to stop authorities from confiscating firearms from private citizens in the aftermath of Hurricane Katrina.

The National Rifle Association (NRA) and the Second Amendment Foundation (SAF) filed a motion in the U.S. District Court for the Eastern District of Louisiana, seeking a temporary restraining order to halt the seizures of guns from law-abiding citizens. They described the confiscations as "arbitrary," "without warrant or probable cause" and thus "illegal."

However, a New York Times article shows that some private citizens are allowed to keep their weapons.

No civilians in New Orleans will be allowed to carry pistols, shotguns or other firearms, said P. Edwin Compass III, the superintendent of police. "Only law enforcement are allowed to have weapons," he said.

But that order apparently does not apply to hundreds of security guards hired by businesses and some wealthy individuals to protect property. The guards, employees of private security companies like Blackwater, openly carry M-16's and other assault rifles. Mr. Compass said that he was aware of the private guards, but that the police had no plans to make them give up their weapons.

So if you're rich, or Sean Penn, you can carry weapons or hire people to carry them for you; if you're poor you're screwed and you have to depend on the New Orleans Police Department to protect you from rapists and robbers in their free time between looting and deserting.

(HT: Hit & Run and Orin Kerr.)

I'm a big fan of juries when it comes to criminal trials -- when fully informed, juries serve as a check on government power and ensure that verdicts are in line with not only the law, but also with the common conception of justice. Similarly, I think juries are decently equipped to apportion blame in civil trials. What juries are evidently terrible at is awarding damages. Without outside constraints, two different juries often award wildly disparate damages to winning parties in nearly identical cases, and the values of awards are often entirely arbitrary and reflect very little about the harm actually suffered. Why? Because calculating harm and assigning it a monetary value is very difficult to do and generally requires expertise and math skills that few people possess.

Non-uniform awards that don't accurately reflect harm are bad because they make it impossible for anyone to calculate the risks they face by doing business. A hot cup of coffee cost McDonald's $3 million, despite medical bills in the mere thousands, but how was the company expected to know that? When juries hand out random awards, people can't determine which risks are too risky, and which safeguards are most important to implement.

For some good news from the Gulf Coast, read about the recent tort reform in Mississippi. (Tort: "in law, the violation of some duty clearly set by law, not by a specific agreement between two parties, as in breach of contract.") Mississippi was previously ranked worst in the nation for insurance costs and cost of doing business because of the state's reputation as "jackpot justice capital of America".

Prior to the legislation, Mississippi was known as the "jackpot justice capital of America." The American Tort Reform Association had labeled certain jurisdictions "judicial hellholes." A survey of more than 1,200 senior in-house counsels for the U.S. Chamber Commerce ranked Mississippi 50th in virtually every category of judicial system nationwide. Insurance companies were fleeing the state. Others were refusing to write new policies. The medical field was particularly strained: Liability insurance was in many cases unaffordable, and in some cases unavailable. ...

Insurance was becoming less available and less affordable prior to the passage of the tort reform legislation. Now, the opposite is true. Some plaintiff lawyers and some consumer groups still contend that tort reform doesn't work--but it does not take a rocket scientist to understand that when liability exposure is made predictable and governed by reasonable rules, risk can be better assessed, and insurance companies are more likely to offer coverage.

Lawyers aren't bad people, but they respond to incentives just like everyone else. Winning lawyers get around one-third of any award, so they've got a huge incentive to keep bringing lawsuits until they hit the jackpot. Even worse, mass tort suits that combine hundreds or even thousands of small cases can make lawyers millions of dollars even when the plaintiffs themselves only get a few hundred dollars each. So lawyers have an incentive to find people with tiny grievances, lump them together, and then pull the lever. The end result is that the losing parties get mauled, the lawyers get rich, and the people who actually suffered harm get a tiny check. That doesn't sound like justice to me.

This problem is yet another area in which libertarian theory clashes with reality. Libertarians tend to argue that we don't need many government regulations because people can just sue, but anyone who examines our civil legal system should see that laws that precede and reduce harm are often more efficient than lawsuits aimed at correcting harm after the fact.

Last night I watched an episode of Law & Order: SVU in which a prostitute purposefully sought out violent clients, waited for them to assault her, and then killed them. She subsequently stole their credits cards and so forth, confounding the situation, but absent that and other complicating factors (such as the illegality of prostitution) should her conduct have been punishable by law? Assuming she didn't instigate the violence but only sought out men she thought were likely to be violent, can she legitimately claim self-defense when she kills a violent man to protect herself?

Ok, everyone's going to be blogging about the recent pledge case in which a federal judge ruled that allowing students to recite the Pledge of Allegiance violates the Constitution. I don't have much to say on the matter other than that it's patently absurd. This is why I think we need to start cleaning the judicial house. Lifetime appointments should be eliminated, and curreent judges who issue facile, nonsensical rulings should face impeachment.

Update:
Then again, Clayton Cramer points out that it's not this judge's fault that Supreme Court precedent is "utterly standardless". Still, I say impeach 'em all and let God sort 'em out.

To the best of my knowledge, laws all around the country require cyclists to obey all the same traffic signs as motorists, but I can't even count the number of times I've watched bicycles zoom through stop signs without even so much as a "California stop". And now, a bicyclist has killed an old lady because of such recklessness, and he's being prosecuted for manslaughter just as if he'd been driving a car. Good!

Maybe some lawyers can shed light on the laws -- and the underlying moral evaluations -- that could determine whether or not BTK's family will/should pay for his crimes.

WICHITA, Kan. - A week after BTK serial killer Dennis Rader was sentenced to 10 consecutive life terms, his ex-wife is fighting to keep the money she stands to make from selling the couple's former home.

Paula Rader was expected to ask a judge Friday to allow her to intervene in at least six civil suits filed by the victims' families against her ex-husband. She is seeking to have Rader's name removed from the title of the couple's home, which has liens against it pending the outcome of the lawsuits.

The families' attorneys are opposing her efforts, saying the house sold for $30,000 more than it was worth because of BTK's notoriety.

On one hand, I'm sympathetic to the ex-wife... but I also find it hard to believe she didn't know anything about Rader's many murders. Let's assume though, for the sake of argument, that she was taken entirely by surprise and had no idea her husband was a serial killer. Do you think the victims' families should be able to sue and take all the assets that belonged to her and Rader jointly? What's the law, and what's the right thing to do?

If anyone remembers the Los Angeles riots in 1992, it's refreshing to hear Louisiana's governor actually condemn the looting taking place in the aftermath of hurricane Katrina.

Gov. Kathleen Blanco said she has asked the White House to send more people to help with evacuations and rescues, thereby freeing up National Guardsmen to stop looters.

An additional 10,000 National Guard troops from across the country began pouring into the Gulf Coast on Wednesday to shore up security, rescue and relief operations. The new units brought the number of troops dedicated to the effort to more than 28,000, in what may be the largest military response to a natural disaster.

"We will restore law and order," Blanco said. "What angers me the most is that disasters like this often bring out the worst in people. I will not tolerate this kind of behavior."

In Los Angeles in 1992, and even in the Wikipedia entry I linked to above, almost all you heard was sympathy for the rioters civil-disturbance-causers and how they were rising up against oppression by burning down buildings, killing innocents, and stealing electronics. Stealing food and essential goods is one thing, but stealing televisions and beer is quite another. Situations like this serve as a stark example that humanity is not, at its root, "basically good", as many like to believe.