War of (No) Words
I’m not talking about the war or investing — the two are
closely related these days. In part, I want to demonstrate that
Americans have the attention span to support a war that is measured
in weeks rather than days. (I can’t help but ask one question,
though: How long until a piece of the head shows up on
eBay?) In addition, the short-term money is now being made by
betting against the crowd. When the market falls on bad war news,
buy. When it rises on good news, sell or go short. The road to end
the war, rebuild Iraq, heal international wounds (and wound
international heels), and get our economy running again is too
crooked for any one piece of information to foreshadow it all.
Tee Party
Without money and war, I have only two topics left: lawyers and
golf. The Masters was rained out Thursday, so I will wait until
next week to discuss the tournament. I will, however, make two
predictions: (1) The Masters is exceptional among sporting events
for living up to its hype and this year should be no exception; and
(2) Martha Burk’s protest will be so inconsequential that people
will wonder what all the fuss was about.
This gives me 750 words and just the subject of the law to fill
it. Luckily, there were two events this week that merit our
attention. Naturally, because neither happened in Baghdad, both
were ignored.
Punitively Yours
I have a natural distrust of any Supreme Court justice who calls
himself a “strict constructionist.” I think that’s the lazy way out
because it frees you from the obligation of reading anything about
the law written after 1790. For this reason, and a few goofy things
I’ve read in his opinions, I have doubted the legitimacy of Justice
Antonin Scalia’s towering intellect. But he was recently confronted
with a situation that “politically” required one vote and
doctrinally required the opposite. He stuck to his philosophy.
I’m talking about punitive damages, on which the Court last
Monday threw out a $145 million punitive award (in a case in which
compensatory damages were $1 million). Despite the expectation that
the Republican appointees would fight to hold down punitives,
Scalia continued his practice of dissenting from rulings that limit
punitive damages because there were no such limits in merry olde’
England or at the Assizes.
The majority of the Court, however, put the clamps on punitive
damages in a way that ought to shut up the self-styled “legal
reformers” out there. The case, State Farm v. Campbell,
involved the insurance company’s unreasonable refusal to settle a
claim against its insured. The Supreme Court, in numerous ways,
criticized the plaintiff’s approach of demonizing the defendant to
rack up punitive damages. (Let’s face it, State Farm is almost too
easy a target — it was guilty of acting like an insurance company
— but that diverts the trial from the real issue, which is what
State Farm did to the plaintiff. The jury concluded State Farm was
liable to the plaintiff, but the punitive award was based on State
Farm being scum-of-the-earth in general, not related to its conduct
toward the plaintiff.)
More important, the Court is getting closer to putting numerical
limits on punitive damages. Although the majority declined to
impose “a bright-line ratio” of punitive-to-compensatory damages,
it proceeded to do just that. According to the Court, “few awards
exceeding a single-digit ratio between punitive and compensatory
damages, to a significant degree, will satisfy due process.” It
repeated its statements from prior decisions suggesting a ratio of
greater than four-to-one is “close to the line of constitutional
impropriety.” (Courts never like to set these things in stone, but
successive generations of litigants, like kids in the backseat
screaming, “Are we there yet? Are we there yet? How about now?”
forced the Supreme Court to spell it out.)
That should go a long way toward ending the push for tort
reform, shouldn’t it? Punitive damages are rarely awarded and this
decision guarantees that the amounts will be limited. According to
the National Center for State Courts, based on statistics from
thirty states from 1991 to 2000, only 2.5% of plaintiffs who win
tort jury trials get punitive damages.
The Right to Shut Up
Where do you stand on the issue of helping law enforcement when
they are after a family member? Would you place your family ahead
of the Constitution, and demonstrate the sincerity of your beliefs
with a trip to prison? If you had to come back in the next life as
Monica Lewinsky’s mom or Susan McDougal, which would you
choose?
University of Massachusetts President William Bulger gets to
decide. The House Government Reform Committee has decided to give
him immunity, following his prior invocation of his Fifth Amendment
privilege against self-incrimination, when it calls him to testify.
The Committee is hoping Bulger will either answer questions they
want to ask his brother, James “Whitey” Bulger, or will divulge his
brother’s whereabouts. Whitey Bulger, accused of being involved in
twenty-one murders while acting as an informant for the FBI,
disappeared in 1995 after being informed he was going to be
indicted.
William Bulger was quoted in the Boston Globe as saying
he would go to Washington with a “cooperative spirit.” I’m hoping
he’s just throwing a curveball to the media and the Committee and
its lawyers. I want to see him show up, shut up, and dare the U.S.
House of Representatives to put him in jail for refusing to rat out
his brother.
As much as I respect the rule of law, I think you have to stick
up for your family and friends before helping that faceless mass of
“society.” The only exception should be where your silence will
endanger innocent people, like when David Kaczynski turned in his
brother, who was still sending bombs through the mail.
The House also offered immunity to alleged mob boss Francis
Salemme. Unless Salemme spills his guts first, he can give Bulger a
demonstration of omerta. I predict, however, that Bulger already
knows its meaning, and will show those guys in Washington the
meaning of the word “loyalty.”
