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Litigating on Behalf of Humanity

Just as there is nothing so foolish that some philosopher has not said it, so there is no litigation so outrageous that some court has not entertained it. No lawyer wants to discourage litigation, after all, and it would be against human nature if courts had not developed vested interests of their own.

The European Court of Justice has recently ruled that ten private citizens, from Portugal, Germany, France, Italy, Romania, Kenya, Sweden and Fiji can sue the European Union for negligence in its inaction on climate change. The litigants claim that the objective of the Union – a lowering by 40 per cent of greenhouse gas emissions by the year 2030 by comparison with those of 1990 – is insufficient to guarantee their fundamental rights to life, health, and property.

The plaintiffs in the action say that they do not seek monetary compensation, and though in general I do not believe plaintiffs when they claim that it is not financial recompense that they are after but only justice and to teach the wrongdoer a lesson so that others after them do not suffer what they have suffered, in this case I think the plaintiffs are probably telling the truth. Rather, they are proving to themselves and others what fine selfless people they are, working for the benefit of the whole of humanity.

The plaintiffs are supported by various pressure groups, including Notre affaire à tous, in effect Everyone’s Business, whose president said ‘We hope that the judges hand down a decision that will force the European Union and its states to keep to their verbal promises.’

Of course, allowing the litigation to take place and coming to a judgement are two different things. The matter is not a foregone conclusion. The European Parliament and Council have two months to prepare their defence. But the scale of the judicial activism to which the court obviously thinks it is entitled not only dwarfs all previous judicial activism but makes the court in effect the ruler of Europe. Of course, many of the judges on the court come from countries in which neither democracy nor the rule of law has been the first characteristic of its past century of their political history and may not be juridically very distinguished. But who cares about the means when the end is so important?

One of the advocates for the plaintiffs, Roda Verheyen, managed in 2017 to get the German courts to examine the case of a Peruvian farmer and mountain guide, who claimed that a German energy company had damaged the Peruvian environment by its emissions (into the world atmosphere) of carbon dioxide. It is difficult to see why this company should have been selected of all the carbon dioxide emitters in the world, though presumably it had sufficient money to make it a lucrative target. The difficulties of proving causation are so obvious and manifold that one can only regard the German courts, in allowing such a case to be brought, as being engaged upon some surreptitious kind of employment scheme for lawyers.

It is not only in Europe that such cases are brought. A group of twenty-one Americans, some of them minors, are suing the American government for having disregarded their constitutional right to life, liberty, and property by permitting subsidised fossil fuel companies to operate, thereby contributing to global warming.

Of making many books there is no end, but the author of Ecclesiastes, whoever he was, might write instead, were he alive today, that in the making of much litigation there is no end, especially under the present legal dispensation (I almost said in the present legal climate). For if carbon dioxide emission in Germany can give rise to redressable wrongs committed in Peru, what limit could there possibly be to litigation? Why not sue local governments because they allow the passage of motor vehicles that pollute the air, lung, and other diseases having been shown to be statistically associated with such pollution? The possibilities are infinite. Samuel Johnson’s great poem, The Vanity of Human Wishes, begins:

Let observation, with extensive view,

Survey mankind from Chins to Peru…

If he returned to earth, he would now write:

Let lawyer, with extensive view,

Search victim from China to Peru…

What seems to me to unite the litigants and their advocates is a profound self-righteousness and assurance that that they know the causes of the ills of the world, which they have taken upon themselves to right by means of legal action. They entertain no doubt about effects that must, to put it mildly, be very remote from their supposed causes, if they exist at all. There is a religious fervour about the litigants that is quite dissociated from true religious feeling, for which perhaps it is a substitute.

They see everyone’s vested interest but their own. This, of course, is a normal human failing, and no doubt we are all often guilty of it. But in my time I have known a number of litigation lawyers who have made an excellent living, not to say fabulous sums, from their legal exertions on behalf of humanity, and who struck me as among the most conceited people I have ever encountered.

It is a reasonable assumption that ten citizens who are suing the European Union risk nothing of their own in doing so, except the expenditure of time (though their sense of purpose and of their own virtue will sustain them and more than compensate them for it). It will not have crossed their minds that they could be doing harm rather than good, or that the bill for their moral enthusiasm would be paid by others than themselves.

The European Union will prepare its defence, we are told. How much will it spend in doing so? It will have no incentive to be careful of the cost, because such entities rarely count cost and indeed all the incentives are to maximise it. The sum will not be very large when divided by the total number of taxpayers in the Union. But the waste of effort will not therefore be negligible. The exertions of the judges, the advocates on both sides, the experts, the other witnesses, and so forth, will add up to considerable sum-total of effort, intelligence, and no doubt ingenuity worthy of a better object. When you multiply this wastage by the number of times similar litigation will now take place, to the great benefit and advantage of an activist court without countervailing power, you glimpse how sclerosis increases and a form of soft authoritarianism comes to pervade our lives, all in the name of fundamental rights to life, liberty, and property.

Reader Discussion

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on August 22, 2018 at 09:16:30 am

First, Dalrymple misses the trees: the people doing the suing are the lawyers, not the plaintiffs. They are the source, the engine, the motor for all of this kind of litigation. Lawyers and, behind them, law professors and "scholars" whose career consists in regularly publishing their imaginings and speculations, which, by a process of constant, career-driven cross-citation, produces the appearance of "law." Plaintiffs are an expedient, easily obtained, but the litigation is the vocation of the legal caste. The judges are also members of this caste. What Dalrymple describes here with reference to one court and one cause is descriptive also of "international law" today.

Second, while the legal caste members playing this game seek fame, they also seek fortune. Don't think for one minute that the lawyers and the various organizations who sponsor this kind of litigation aren't in it for the money. In the US, again, the litigation-industrial complex has evolved to the point where, with a conniving government like we had from 2009 - 2016, the legal caste routinely expropriates corporate wealth, a somewhat grander-seeming variant of the asset forfeiture scams that countless local police and sheriff's departments here run against ordinary joes and janes. It is a form of taxation that bypasses legislatures. The litigation against the tobacco companies and resulting extortion set the precedent. Our tort law has, at long last, fully realized the principle announced in 1928 by the dissent in Palsgraf v. Long Island R.R.: The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. A judicial system allowed to operate under this principle renders a legislature wholly superfluous.

As Mark Steyn likes to say (though he did not invent it), the process is the punishment. Merely by not immediately dismissing with prejudice all lawsuits like the one Dalrymple cites and announcing that no such claims are justiciable in the courts at all in any respect, judges make the plaintiff-industrial complex victorious. If our Congress had even a shred of self-respect, they would put an unequivocal stop to this.

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QET
on August 22, 2018 at 10:44:15 am

Europe be damned, they deserve it.

But oh, if only our nation's 50 legislatures or its one Congress or at least its Article III courts would adhere to what is a legally-necessary modification of Palsgraf's epigram, " The risk reasonably to be perceived (to society from tolerating, the political divisiveness, waste of national treasure and harm to the rule of law wrought by groundless, frivolous, fractious litigation) defines the duty to be obeyed (by the legislature and the court.)"

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Pukka Luftmensch
on August 22, 2018 at 14:52:04 pm

I failed to add that, per usual, Dalrymple's thinking is spot on and expressed with his customary felicitous style of casual clarity and that several of his general observations about human nature in a courtroom warrant specific comment by a retired federal litigator:

1) Dalrymple says: "No lawyer wants to discourage litigation, after all, and it would be against human nature if courts had not developed vested interests of their own." As to which I say a) that in the US lawyers both venally incite and disgracefully protract destructive litigation and do so solely for the purpose of enriching themselves and empowering their political class (elitism) and b) that judges, as self-regarding members of the aforesaid suspect class, fail to deter destructive litigation because they misperceive their jobs as providing justice rather than interpreting the law. The former (a) is a venal sin endemic to the modern legal profession which is no longer a profession but a big business and a weaponized expression of political ideology. The latter (b) is a self-regarding consequence of the public's toleration of near-80 years of judicial oligarchy; i.e. "Power corrupts and absolute power corrupts absolutely."

2) Dalrymple says of the "climate change" litigation which he discusses, "(the plaintiffs and their lawyers) are proving to themselves and others what fine selfless people they are, working for the benefit of the whole of humanity." To which I say that social justice litigation is not mere virtue signaling but rather "a weaponized expression of political ideology" and that it has in the US become the principal means since the 1970's by which the revolutionary Left has sought to achieve its destructive, anti-democratic goals; the political, legal, cultural and economic ends which were otherwise unattainable through the appropriate legislative processes of what used to be (but is no longer) our democratic republic. As a consequence of the revolutionary Left's startling achievements pursuing that perverse ideological strategy the US is the first country in history to have undergone a constitutional, political, regulatory, economic and cultural revolution through and largely because of its federal court system. But the revolution was NOT the work of "fine selfless people...working for the benefit of the whole of humanity." It was the work of lawyers with the skills of Clarence Darrow and the strategic vision of Lenin and of judges with the hubris of oligarchs and the attention to constitutional duty of judicial derelicts.

3) Dalrymple says, "The (climate change) plaintiffs are supported by various pressure groups..." As to which I note that the Democrat Party is a collation of special-interest factions (''pressure groups") vying for political power using the judiciary, together with the media, as their principal means of warfare. No Democrat Party special interest group is as factious, well-funded, organized for invasive, destabilizing litigation and as skillful at litigation abuse than the very-rich, soi-disant "environmental" (sic) groups. Nor does any faction in American history stand to achieve the degree of legal and political control which these environmental terrorists hope to accomplish through their "climate change" invasion, which is the legal and political equivalent of Hitler's Operation Barbarossa in June 1941. If they, like it, succeeds all is lost, truly.

4) Dalrymple says of the climate change plaintiffs, "It will not have crossed their minds that they could be doing harm rather than good, or that the bill for their moral enthusiasm would be paid by others than themselves." To which I reply, that Dalrymple's is a perfect characterization of Eric Hoffer's "True Believer" about whom and a book which all must read if we are to know the enemy.

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Pukka Luftmensch
on August 22, 2018 at 15:26:44 pm

Outstanding. Especially this: that judges, as self-regarding members of the aforesaid suspect class, fail to deter destructive litigation because they misperceive their jobs as providing justice rather than interpreting the law

And this: the work of lawyers with the skills of Clarence Darrow and the strategic vision of Lenin and of judges with the hubris of oligarchs and the attention to constitutional duty of judicial derelicts.

Felicity is just what we don't need right now.

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QET
on August 23, 2018 at 10:50:53 am

" It will not have crossed their minds that they could be doing harm rather than good, or that the bill for their moral enthusiasm would be paid by others than themselves."

NO - that is precisely the point. Others WILL pay and WE still get to feel better about ourselves.

Then again, the Judges, no doubt, may also be able to increase their own self-esteem and feel much better about themselves once they render the appropriate "climate protecting' verdict.

And for anyone who doubts Pukka's assertion that lawyers AND law firms are more interested in revenues, here is a little anecdote to illustrate the point.

Some years back, not content with "overbilling hours" a large Northwest law firm, defending a municipal transit agency, decided to provide EVERY single one of their 300 plus lawyers, associates and first year summer interns with copies of every piece of discoverable material and submissions in order to facilitate a "thorough" overview of the firms strategy, cites, etc.
Each firm member received 3,000+ pages of material. The Agency, of course, was charged $2.00 per page for this "review." Office Depot trucks were lined up outside the office to supply the paper.

Public spirited indeed as they appear to believe that they *spirit* away public monies.

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gabe
on August 23, 2018 at 13:29:21 pm

And then there is this - something I am certain will induce warm and considered feeling in our friend Pukka's heart as he (and we) is once again able to witness the beneficent effects of Lawyers "working for ALL Humanity" (and not inconsequentially, in this instance, causing real physical pain to those they purport to help):

https://spectator.org/the-opioid-lawsuit-circus/

wherein the collective efforts of our corrupt political class intersects rather adroitly with the money grubbing efforts of a corrupt legal establishment.

Good Lord, please deliver me from the tender ministrations on my behalf of "do-gooders" and let me have my stinking opioid prescriptions without all the nonsense says the little old granny!

Hey, even the LightBringer, Obama once quipped, "Let granny have more pain pills!"

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.