Blogito, Ergo Sum - 26 March 2008

Here's a subject which was close to my heart, back in my business days: punitive damages.

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators.

I'm not completely against the concept of punitive damages in truly heinous circumstances, but not as a routine thing, and there's a quick and easy way to resolve the problem in the United States, only I don't think you'll ever sell it.

Simply don't let the plaintiff and the lawyers participate in the punitive portion of the award. That money should go to a disinterested third party, probably even a charity related to the injury that was involved, and there should be no direct connection between the court and any of those involved. Maybe a lottery system of some kind.

Take the greed factor out of the loop and the problem will resolve itself quickly enough. The victim will be compensated for his injury and if the wrong-doer needs a severe punishment as a caution to himself and an example for others, then that is still available.

All of the lawsuits in which I was inevitably involved as a California real estate broker, one of the reasons I decided to leave both the industry as well as the state, had frightening amounts of punitive damages sought.

And for ridiculous reasons. In one particularly vile circumstance, the buyer had made an offer which was subject to court approval, at which time the court would ask in the open courtroom if there were any other's who wished to consider making an offer. The buyer was well aware that this was to be the case, even appeared at the court hearing, and listened quietly when someone stood up and made a larger offer than his. He said nothing, so the court accepted the other offer and our buyer lost the deal.

The buyer sued my agent, which of course included me and my firm, as his 'employing' broker, for not telling him about the necessity for court approval. Of course we had told him, I was present when the offer was written up and signed by the buyer and we discussed the situation in detail, but we had no way to prove it in court. My agent was new and I was inexcusably naïve, never dreaming that someone I had looked in the eye would lie about it later on, so we failed to write that into the contract as a CYA paragraph.

The buyer said not a word about it, though, so the complaint arrived by deputy sheriff as a surprise one morning and shocked us almost into insensibility when we read it and looked at the size of the numbers, especially the punitive damages part.

The attorney who brought the suit against us later said that he knew that we had errors and omissions insurance, and he thought they would cut their losses with a quick $25,000 nuisance settlement for his client and him to share in order to go away, never thinking that I would protest over losing my $2500 deductible (this was circa 20 years ago, remember, when thinking about that amount) as well as implicitly being guilty of fraud, also one of the complaints. He was actually quite surprised when we fought the suit and I never spoke to him again, since by his ethical standards he had done nothing wrong and felt no guilt or shame at all for aiding and abetting extortion.

In those bygone days, our insurance policy still allowed us to make the decision whether or not to settle. That policy has since been changed, let me assure you. Eight years later we were still fighting and the cost was driving our insurance carrier nuts. It cost me and my agent a lot of lost time, sleep and worry, so it wasn't really free to us, either. In the end the judge and the insurance company begged us to settle for a MUCH smaller amount, and the insurance company agreed to forego our deductible if we'd just cooperate. Well, by this time the entire county was well aware that we weren't guilty of fraudulent conduct, and we were getting pretty tired of the whole thing, so we did.

In the end, I gained two sweet satisfactions. One is that the plaintiff's attorney, who had taken the case on a contingency basis in order to get half of the settlement, was heard complaining about how much money he had lost spending hours and days and even weeks on the case, over a period of eight years. The other was from another attorney friend who confidentially told me that he had been approached by some people and sounded out about bringing some sort of complaint against another one of my agents. "Well," he said he told them, "think about it carefully, because Gregg will fight it to the end, no matter how long it takes." He said that they left and he never heard from them again...and, no, he never revealed who they were, and said that he wouldn't have taken their case if they had pursued it, which was why he revealed to me as much as he did.

Later there came a time in California when the attorneys got so greedy that the E&O carriers essentially left the state, killing the golden goose. During that time I got a phone call, one day, and someone who did not identify themselves asked me for the name of my E&O carrier. I said that I didn't have one, at which point the caller hung up abruptly, so I can only speculate what the call was really about.

Anyhow, take the lawyers out of the big payday punitive damages loop and you'll see reason restored rather quickly. In this case, as least, I agree with the European courts.

I have no personal experience, thank goodness, but I'm told that it is difficult to collect liability damages in Costa Rica for foolish lawsuits. For instance, a visitor slips on a banana which has fallen off of one of our trees and hasn't been picked up yet. I'm told that the judge will ask the injured person how his eyesight is. If the guy says that it's fine then the judge will say that he should have been responsible enough to see the fallen banana. If the guy says no, I meant it's bad, the judge will ask why he was walking around outside without the assistance of someone who could see? In both cases, no damages since the injury could have easily been avoided by the plaintiff.

I'll bet you North Americans sure wish it was that way up there. Take the lawyers out of the punitive damages pot of gold, then elect conservative judges, and it will be.

On a funnier matter, we see that the NYTimes has a front page photo titled "Militants taking up positions in Basra on Sunday". In it are two carefully-posed masked men kneeling in the open, in FRONT of a protective concrete wall with openings they could fire through, and only pointing assault rifles, not firing them. Apparently the photographer was just lucky to catch them getting ready to fire, or maybe they were going to kneel in that position all day, I don't know. I guess it wouldn't have made as good a picture if they had actually been behind the wall in a logical combat position.

As always, for more humor we can turn to the Op-ed page of the NYT, where this gentleman decides he needs to attack McCain as best he can manage:

Oh, no, wait...excuse me...that was John McCain in his 2000 presidential campaign, and this guy quotes it as an example of McCain's attacks on the individual! In Barack's case, of course, it would have been an example of great oratory.

Carol gets angry and asks me how I can laugh at ridiculous things like this, and I say that's precisely the reason.

What's that you say? You knew it was a fake Obama quote because it said "patriotism"? Oh.

Teenagers are cynical about professional sports because of steroids (a “transcendent issue,” Mr. McCain once thundered in the Senate), so he has proposed that the government be given the authority to demand that even Division II college athletes be subject to the personal intrusion of random drug testing and punishment. Likewise, because betting on college sports could make one cynical about games possibly being thrown, Mr. McCain wanted to make that a federal offense.

The senator’s ideas for “reform” — taxing cigarettes, banning ultimate fighting, giving the president a line-item veto — typically empower the executive branch at the expense of American citizens and their representatives. Even his efforts to prohibit torture and overhaul immigration proved hostile to individual rights. His ban on the cruel, inhuman and degrading treatment of detainees was packaged with provisions that jeopardized habeas corpus. And his immigration bill would have required American workers to prove their citizenship.

I stand in awe at these charges. Why of course teenagers should be allowed to retain their cynicism about professional sports while watching their Division II college athletes drugging up, those guys have their civil right to do that, after all. And taxing cigarettes and banning ultimate fighting, whatever that is...how can McCain treat individuals like that?

And, horrors, the line-item veto? The governors of all but seven states in the U.S. have some form of line-item veto, but no matter, this is McCain's crime against the individual.

Bill Clinton asked for it in his SOTU of 1995 and the "Line Item Veto Act of 1996" was passed the next year. Clinton used it 11 times to strike out 82 items he didn't like.

Is our fearless trasher of McCain unaware of these previous attacks on the individual? Perhaps I am the ignorant one and he will produce in his defense his furious Op-ed against President Clinton back in 1996 and I'll have to apologize.

Naturally habeas corpus is more important than stopping torture, so if you can't get that then you might as well keep on torturing, and requiring American workers to prove their citizenship? How inhuman...all any American should ever have to do is simply stand there and LOOK American! Of course it is only illegals who should be required to prove their identity.

I don't know about you, but this litany of McCain's crimes has left me so weak from laughter than I'm going to have to move on to something else in order to regain my composure.

I guess it's just a morning for humor, as Maureen Dowd adds her take to the dream ticket:

She can’t win without him, said one Hillary adviser, and he can’t win without her.

They’re stuck with each other.

It’s one of my favorite movie formulas, driving the dynamics in such classics as “A Few Good Men,” “The Big Easy” and “Guys and Dolls”: Charming, glib guy spars and quarrels with no-nonsense, driven girl, until they team up in the last reel. He spices up her life, and she stiffens his spine. And soon they hear the pitter-patter of little superdelegate feet, who are thrilled not to be pulled in two directions anymore.

Good line; got an audible laugh out of me. And a broad grin out of this next one:

She's just exonerated Bush, because there's no crime in being less experienced and younger! And there's certainlyabsolutelypositively no crime in being FOOLED, even by a moron who is possibly an idiot, as every Democrat in the world has assured us by now.

Maureen thinks maybe Hillary wants Barack to lose to McCain so she can run again in 2012.

Why else would Phil Singer, a Hillary spokesman, say in a conference call with reporters on Tuesday that Obama was trying to disenfranchise the voters of Florida and Michigan. “When it comes to voting, Senator Obama has turned the audacity of hope into the audacity of nope,” he said, adding, “There’s a basic reality here, which is we could have avoided the entire George W. Bush presidency if we had counted votes in Florida.” So is Singer making the case that Obama is as anti-democratic as W. was when he snatched Florida from Al Gore?

With Maureen you never can be sure if she really believes what she is saying or is merely trying to be cute. Florida, of course, wasn't snatched from Algore for the simple reason that he never had it to begin with.

Algore lost Florida after the votes were counted the first time...all of them.

But the totals were close, so Algore quite reasonably enough asked for a re-count. Okay, no problem, that's within the rules.

But Algore pressed his luck and gambled. He said that he wanted only certain counties, those of his choice, to be re-counted.

Well, that isn't within the rules, although it took the Supreme Court to convince him.

Sorry, Al, they said. You can have your re-count, if you want, but you can't have a selective re-count. Either you re-count the whole state or you don't re-count any of it; your choice.

By that time, however, the time-clock had counted down to the buzzer and left the original vote count standing with Bush as the winner. Just like he always had been.

Some top Democrats are increasingly worried that the Clintons’ divide-and-conquer strategy is nihilistic: Hillary or no democrat.

... even Clinton supporters know that Bill does not want to be replaced as the first black president, especially by a black president with enough magic to possibly eclipse him in the history books.

Oddly enough, even though Maureen spent most of this column trashing the Clintons, she still remains under the impression that Bill Clinton's place in the history books is something that anyone could possibly want to emulate.

As thin as Obama's legislative record is, he'll have a difficult time catching even the anemic Clinton legacy. It's difficult to eclipse a new moon. And the rest of Bill's place in history, he assuredly does not want.

The NYT Op-eds are sharpening their knives for McCain, although not very well, as we have seen:

IT is certainly no secret that Senator John McCain, the presumptive Republican presidential nominee, is a darling of the news media. Reporters routinely attach “maverick,” “straight talker” and “patriot” to him like Homeric epithets. Chris Matthews of MSNBC has even called the press “McCain’s base” — a comment that Mr. McCain himself has jokingly reiterated. The mainstream news media by and large don’t cover Mr. McCain; they canonize him. Hence the moniker on liberal blogs: St. McCain.

What is less obvious, however, is exactly why the press swoons for him. The answer, which says a great deal about both the political press and Mr. McCain, may be that he is something political reporters really haven’t seen in quite a while, perhaps since John F. Kennedy.

Seeming to view himself and the whole political process with a mix of amusement and bemusement, Mr. McCain is an ironist wooing a group of individuals who regard ironic detachment more highly than sincerity or seriousness. He may be the first real postmodernist candidate for the presidency — the first to turn his press relations into the basis of his candidacy.

Of course this is not how the press typically talks about Mr. McCain. The conventional analysis of his press popularity begins with his military service. If campaigns are primarily about narratives, he has a good and distinguished one, and it would take a very curmudgeonly press corps to dismiss it, even though that is exactly what a good portion of it did to Senator John Kerry’s service record in 2004.

For those of us who remember better than this writer hopes we do, Kerry got loads of adulation from the press about his service record...until it turned out that it was thinner than Obama's legislative record of "present" votes, and certainly that's not the case with McCain.

It is delicious irony that the Democrats tried to run a Vietnam war hero and failed, whereas the Republicans are going to run a Vietnam war hero and win.

Unfortunately, the Democrats picked one who couldn't pass the Dan Rather documents test.

All McCain needs now to fool them completely is to be called a moron and possibly even an idiot.

Howard Kurtz, like most liberals, has a problem with the Iran/al-Qaeda relationship:

...we have a pair of interesting case studies right now: John McCain saying that Iran was helping to train al-Qaeda operatives, and Hillary Clinton saying she came under sniper fire in Bosnia in 1996 and then, oops, never mind.

Liberal bloggers are all over the media to pump up the McCain story, and conservative and liberal bloggers are denouncing or ridiculing Clinton over the Bosnia tale.

When I first saw the tape of McCain's comment on Iran--which he corrected a moment later after Joe Lieberman whispered in his ear--I thought it was a blunder, but not necessarily a consequential one. After all, McCain has made eight visits to Iraq and been involved in foreign policy for 20 years. He's no greenhorn when it comes to this stuff. Brit Hume dismissed it as a "senior moment."

But then I learned that the Arizona senator had made that Iran/Qaeda assertion two or three times before. That's serious business. It means either that McCain really believes the link exists and wants to spread it around--until he got called on it--or he is so forgetful that he keeps saying so even though he knows it is untrue.

I think you need to recognize the distinction between Iran actually training al-Qaeda inside Iran and sending them back, and Iran actually having a relationship with al-Qaeda.

Unlike most journalists, McCain has a lot more inside information about Middle Eastern relationships than most people. Iran is widely known for supporting terrorist groups around the world, and not merely Shiite terrorist groups, as the media would apparently have you believe. The media mantra of the moment is that Shiite Iran wouldn't possibly aid Sunni al-Qaeda, the religious boundary is simply an imperative. But that has been shown to be as simple-minded as the thought that the supposedly secular Saddam wouldn't possibly have cooperated with his fellow Sunni al-Qaeda because the latter were, well, religious.

Yet I'll bet you that any journalist (I'm using the term loosely) would also be able to babble off for you the phrase "the enemy of my enemy is my friend", and be proud of the knowledge of Middle Eastern mores that babble demonstrates.

The Persian Shiite theocracy of Iran does not want to coexist with the Arab Shiite secular government of Iraq, plain and simple. The Persians want to add Iraq to the Persian Empire, under their rule, period. They are NOT friends of the Maliki government, no matter their smiling appearance. Imagining that they would not support al-Qaeda in its quest to drive the Americans out of Iraq simply means that you don't even begin to understand the Middle Eastern mindset. Of course they would. And are.

As for the rest of it, saying al-Qaeda when he meant jihadists, or whatever, isn't confined to senior moments. There were three children in my family, and when we were younger and all living at home my mother used to sometimes run through all three of our names before she got to the one she meant. Likewise, I have four dogs, three of whom bark too much, but sometimes I shout the wrong name at one trying to get it to shut up.

Hillary's fib on Bosnia, which she tried to pass off as a "blip" of a misstatement, strikes me as inexplicable. I mean, either you came under sniper fire after landing in war-torn territory and ran for your life, or you didn't. Plus, there was video of the first lady's arrival. What possible benefit could she have reaped from describing events that do not appear on the tape? The discrepancy finally became a big story yesterday when Hillary 'fessed up, days after The Post (four Pinocchios), CBS and other media outlets exposed it. The problem for her is that it's one of those easy-to-remember fictions that exposes her to the ridicule of late-night comics.

The truly odd part, which I heard mentioned only one place I cannot remember right now, is that Chelsea was there and she heard her mother repeat the fib several times...so why didn't she take Hillary aside and correct her? Warn her of the danger?

Kurtz then cites some bloggers complaining about McCain, but this is typical of why their complaints don't count for much:

Liberals always have to go too far, it seems. Because while a lot of people are willing to laugh at McCain's supposed mistake, it takes a huge leap of Liberal Logic to conflate that with not even having a clue.

Outside of the wingnuts like Arianna, few people are going to buy the suggestion that McCain knows nothing at all about Iraq or the Middle East, and certainly not less than the wingnut does. What would you like to bet that Arianna and Kos and the like all consider themselves to be experts?

At Real Clear Politics, Tom Bevan says Hillary will be seriously wounded:

"Voters won't react kindly to the revelation that Clinton tried to take them for a ride about the circumstances of her trip to Bosnia, and saying she 'misspoke' ain't gonna do the trick.

"It may not hurt as much as Rev. Wright hurt Obama, but this hurts Clinton. She already faces questions with the public about her honesty and trustworthiness...

Questions? She faces questions about them? What questions would those possibly be? Oh, wait, I get it...that she is EVER honest and trustworthy. Has to be that, because there's no question at all that she isn't always.

The other Hillary flap I'm enjoying is over her pointing out the embarrassing (to some) point that even all of the "pledged" delegates really aren't, well, necessarily solidly pledged. This stirred this bit of Liberal Logic in return:

That draws some flak online, from the likes of Josh Marshall:

"It's basically a non-point because campaigns don't choose just anyone to serve as a delegate. They pick the absolute hardest core supporters of their candidate. So the odds of any delegate getting flipped are basically nil.

"It's also another example of the fog of nonsense that has increasingly enveloped the Clinton campaign. Spin is one thing. And it's not a bad thing. But to have utility it must be tethered to some relevant facts, some kind of reality. Otherwise it just descends into ridiculousness."

Well, sure, he admits, Hillary is right, but it doesn't count because the odds are against it, therefore it's spin? I loved that, one: truth is spin if Marshall thinks the odds of it being true are low enough, in which case there is no relevant fact, no kind of reality.

Rather than just cover Carville's "Judas" charge, Marc Ambinder examines the underlying issue:

"James Carville cannot even explain why Gov. Bill Richardson owes something as prestigious as his presidential endorsement to Hillary Clinton. It is self-evident to him that Richardson has betrayed Clinton. The Clintons gave him so much, it seems, that anything but complete fealty is traitorous."

Despite "an internal logic to Carville's argument," Ambinder continues, "a large part of the Democratic Party has demonstrated conclusively that their loyalty to the Clintons and their appreciation for a decade well done does not extend to an automatic stamp of approval for Hillary Clinton's candidacy."

Loyalty, in politics, even for a decade well done, translates only to what have you done for me lately.

A better question for Carville and Richardson would be why, if Richardson is so big on following the will of the people rather than being personally loyal to Hillary...why didn't he then pledge his superdelegate vote the same way the voters of his own state did? New Mexico went for Hillary, so why didn't Richardson follow the will of his people? Aha, the superdelegate in action!

Julie Walsh has more on the disconnect between expressed public concern over global warming and what they are willing to do about it. In particular, she asks an important question:

...our Congress is considering a bill that would cost each American around $1,375 per year by 2030 and cause a gas price increase of 53 cents per gallon, according to the EPA (page 4), to supposedly alleviate global warming.

If Congress believes that only $600 per taxpayer of “stimulus” can keep us out of a recession, wouldn’t a $1,375 cost per individual send us into one?

Back on the campaign trail, as the Weekly Standard carries this pundit's solution for Hillary, since he figures it is impossible for her to win this time, anyhow:

So why not the 48 month plan? Hillary drops out now. She crowns Obama, to great cheers from the media and the party base. Let Obama, now rather brutally removed from Sainthood, go off and lose to McCain. Let McCain serve one term and then run against him in 2012 as the united pick of the Democratic party?

Well, two things. Even if Obama loses this time, he'll very likely run again and she'll be in the same place in 2012 as she is today, trying to beat the black candidate. And surprises everybody and wins the presidency this time, he just might get stronger the next time, especially if there are further gains in the Middle East during his presidency.

And if Obama wins this year, Hillary's current 10% chance is definitely zero.

I think people like Wright and McPeak are going to hurt Obama more and more, and as Christopher Hitchens pointed out, there may be a few more of those people yet to appear before the final states vote. Hillary is down, but not out...although her stupid sniping lie sure didn't help her any. Talk about dumb, since it wasn't necessary at all. Nobody really cared one way or another if Hillary ran the risk of sniper fire or not. But they did once she lied about it. Embellished extensively.

Judicial Watch, which has been seeking access to Sen. Hillary Rodham Clinton’s (D-N.Y.) records from her time in the White House, argued Wednesday that the Illinois senator, who has criticized the former first lady for a lack of openness, has his own “records problem...”

“It appears that Obama never kept records of his time in the Illinois state legislature, or he discarded them,” Fitton stated. “Either way, he clearly intended to leave no paper trail.”

Hillary is being "swiftboated"!

She claimed that she came under sniper fire when she visited in Bosnia in 1996, but was contradicted by videotape showing her sauntering off the plane and stopping on the tarmac to listen to a little girl read her a poem.

Similarly, John Kerry's claim to heroism in Vietnam was contradicted by 264 Swift Boat Veterans who served with him. His claim to having been on a secret mission to Cambodia for President Nixon on Christmas 1968 was contradicted not only by all of his commanders -- who said he would have been court-martialed if he had gone anywhere near Cambodia -- but also the simple fact that Nixon wasn't president on Christmas 1968.

In Hillary's defense, she probably deserves a Purple Heart about as much as Kerry did for his service in Vietnam.

Ah, yes, that makes me grin a second time while pasting it in here. And this next line is also very, very good:

It's such fun watching liberals turn on the Clintons! The bitter infighting among Democrats is especially enjoyable after having to listen to Democrats hyperventilate for months about how delighted they were to have so many wonderful choices for president.

Now liberals just want to be rid of the Clintons -- which is as close to actual mainstream thinking as they've been in years.