Tuesday, December 16, 2008

Suing you to tell you what's on our minds

I was reading the article to which the title of this post links (9/11 Fallout: The Next Round, by Anna Stolley Perksy, in the December 2008 issue of the ABA Journal) and I saw a quote by Michael Martinez, who argued for exempting US government from legal repercussions for their crimes and evil deeds (torts) with the line that "We want them to make decisions that are the best for all of us."  

Well yes, we do.   I don't feel like arguing with that.

But, I ask, what is best for all of us?

There is no universally accepted answer that is constructive.  Making us happy might help, but merely begs the question of how to make us happy. 

Here's my relatively straightforward response then.  Hell yes I want government officials "making decisions with one eye toward possibly getting sued".  I'm well aware that they "often have to make quick decisions that are of major import."  Many of us do.  Doctors do.  Lawyers do.  Parents do.  Drivers do.

Is Mr. Martinez such a strong believer in theidea that the threat of a lawsuit distracts people from what is important that he would argue that airline pilots should be immune from suit.  Maybe only when they're full of people and over major metropolitan areas so their decisions are of "major import"?  Maybe potential criminals about to unleash a hail of gunfire should be immune, because they're in the process of making a quick decision of major import.  Maybe executives and traders should be so immune.

All of these people generally must make quicker decisions that a government official.  Arguably (but I won't argue that here) some of their decisions are as important to me as the most important decisions of government officials.

Moving back to where I started: what's best for all of us?  Given that there's probably no perfect answer for any given situation, we answer based on our values and the information we have.   Let's ignore values and turn for a second to the information at hand.  

How does our government official know what she's about to do is not in our best interests?  It's against the law!  It harms people to the extent that they'll sue you!  The threat of lawsuit is an information transfer device.  If a gov't official believes there's a credible threat of lawsuit, that government official will indeed take that into account.  And should.  Because it means the decision is against the law or is likely  to inflict legally cognizable harm on someone.

Do some elements of society not like it -- do they want government officials to be able to authorize or allow the beating of Muslims simply because they're Muslim?  Do some elements of society want government officials to be able to tax millionaires at a 90% marginal rate or to seize assets in blighted areas or to summarily halt all government expenditures other than the military, all without fear of lawsuit?

Sure they do.  But the threat of a lawsuit, reasonably regulated by pleading standards, is a reminder to that government official that such behavior certainly isn't in all of our best interests.  

Go ahead, beat, tax, seize, or halt.  But do so knowing that in addition to living with yourself, you'll have to live with a lawsuit.


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