Monday, June 11, 2007

What a Bork

In my last year of law school, I wrote a directed research paper on defamation law. What I proposed was rather radical (in a nutshell, greatly reducing the standards for liability but increasing the standards for proving and obtaining money damages), but that is not the subject of this post. In the course of my research, I came across the musings of Robert Bork. I had never before--and to this day still have not--seen a bigger pompous hyprocritical asshole. I literally did a dance of joy when Bork's nomination to the Supreme Court was terminated. I would rather have Paul Wolfowitz running the country than for Robert Bork to have any kind of authority, and anyone who has read this blog even semi-regularly knows that is a strong statement for me. And just to underscore that sentiment, please note that I used Wolfowitz's actual name instead of "Wolfowitless."

And now Bork has just proved my point. Bork has long been one of the loudest voices among those squawking about tort reform. Tort reform is another subject for another time, but for now I will say that most "tort reforms" are not about reforming the system, but rather seek to eliminate all liability, and anyone who thinks that is a good idea needs to think again. Tort reformers almost always complain about frivolous lawsuits and excessive damages, especially punitive damages and damages for pain and suffering.

And now Robert Bork, champion of tort reform, has filed a lawsuit against The Yale Club seeking $1 million in damages--including pain and suffering--and punitive damages. I am going to analyze Bork's lawsuit in detail in subsequent posts, but for now I just want to point out that Bork has spent much effort in the past arguing that tort reform has been needed to stop lawsuits that seek excessive damages for things like pain and suffering. According to Bork, the tort system is out of control and needs to be controlled by Congress because the current system is threatening the national economy. As he wrote in a 2002 article,
State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress's power, may now be constitutionally appropriate.
And in 1995, Bork co-authored an editorial in the Washington Times that said the following:
Interstate commerce and trade have become the principal victims of a runaway liability system.

Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories. Today's merchant enters the marketplace with trepidation - anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.
(emphasis added). And now, when he is injured, Bork brings one of those lawsuits he has in the past sought to all but eliminate. That is rank and abject hypocrisy, folks.

But you don't have to take my word for it. Ted Frank is a resident fellow at the American Enterprise Institue, one of the leading conservative and/or Republican think tanks in the country. He is also a staunch advocate of tort reform. Here's just part of what he said about Bork's lawsuit:
Before someone accuses us of playing this down, let me be out front and say that I find Judge Bork's slip and fall suit against the Yale Club embarrassingly silly.
I don't find Bork or Bork's suit a subject of amusement. I find it sad. The injury is sad, the betrayal of values Bork once stood for is sad, and the fact that I find myself in a position where I need to criticize the actions of Bork and a law firm I respect greatly is sad.
This claim in this suit seems to go against Bork's previously stated values. If that is because the complaint is poorly drafted, and there is a better story to be told, I will be the first to apologize.
(italics in original). The link to these comments presents a good overall discussion of this matter, including comments from Bork's son, and those interested in this case should read that full post. I will be referring to it and others in subsequent posts here.

Some of those subsequent posts are going to explain why this is a bullshit lawsuit, and thus will further expose Bork's hypocrisy.


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