Too Often, Tort Law Introduces Populism in Justice

Tort law is supposed to give redress to those who are wronged and on occasion I have known it do precisely that. More often, though, I have seen it exert a deeply corrupting effect on plaintiff, defendant, the legal profession and society in general alike. It encourages perjury and what in effect is blackmail, and more often than not turns justice into a game of poker. It causes more misery than it alleviates and in general confirms Mr. Bumble’s great dictum that “the law is a ass, a idiot.”

The two great legs of any tort action are, first, that someone has done something wrong, and second, that the wrong he has done has caused the plaintiff harm. The first is usually easier to prove than the second because almost everyone (or every legal entity) has done something wrong. The second is harder to prove and often involves lying, special pleading, false argumentation and, where juries are involved, sentimentality and appeals to emotion.

A recent case illustrates rather well the absurdities and corruptions of the tort law. Dewayne Johnson, a gardener in California, was awarded $290 million, including $250 million in punitive damages against the chemical firm Monsanto. In the suit, he claimed he had been exposed occupationally to its product, glyphosate, and alleged he had developed non-Hodgkin’s lymphoma as a result. The verdict and judgment were received with high praise, and not only in the United Sates.

It put me in mind of the litigation against the tobacco companies, which struck me as both morally and intellectually corrupt, in essence an attempt to transfer a portion of the profits of the tobacco companies from the shareholders to the litigation lawyers.

This is not to say that the tobacco companies had done nothing wrong, or that their products had done no harm. The companies lied and their products killed: but could it really be sustained that their products killed because they had lied? I do not think so.

I remember in particular the case of a man who died of cancer in his forties, having started to smoke at the age of twelve. His widow was awarded a large sum, but this seemed to me wrong, however sad her husband’s death and however deep her grief. (If we withhold our sympathy from people who have, to a large extent, brought their misfortunes on themselves, we should not find a very large scope for our faculty of sympathy: but monetary compensation for them is another thing.)

That smoking tobacco was very bad for you and caused cancer was known well before the deceased took up smoking. In fact, in more than forty years, I have never met anyone in the western world who did not know it, even those who seemed ignorant of almost everything else. Moreover, the boy of twelve (as he then was) almost certainly knew that what he was doing was forbidden to him. He might even have done it because it was forbidden.

The only other argument in favor of the plaintiff was that, having commenced as a smoker, he became addicted and therefore could not stop. But it has been known for more than a hundred years that smoking is addictive: it was evident from Mark Twain’s famous remark that giving up smoking is the easiest thing in the world, he had done it hundreds of times.

It is true that the tobacco companies bred tobacco with higher concentrations of nicotine and aimed brands with higher nicotine content at young people, the better and quicker to addict them, and that this was a disgraceful thing to have done. But character, not addiction, is destiny, and in fact addiction is a state of voluntary subservience. If it were not, millions of people would not have been able to abandon their habit.

Of course, the case of glyphosate is different. If one unknowingly buys food containing glyphosate, one is involuntarily exposed to it. A person who is occupationally obliged to use it and has not been warned of its dangers (if any) is not voluntarily exposing himself to those dangers. Therefore the case depends on what those dangers are and whether they have been deliberately hidden. There is, as we shall see, a further consideration.

As it happens, a former colleague of mine is an expert on herbicide, insecticide and fungicide poisoning. She has written widely on the subject and after careful consideration of the evidence came to the conclusion that glyphosate does not represent a serious danger to health, though it might potentially have carcinogenic effects in humans, especially if used in unusual or exceptional quantities for prolonged periods (such a possibility can scarcely ever be excluded). The scientific question was definitely not settled, therefore, and in fact the European Union had extended the product’s licence for another five years precisely because no harm had been unequivocally to result from the use of glyphosate. The EPA in America has not prohibited its use either. If glyphosate is indeed a serious danger to human health, the regulatory agencies are as much to blame as the producers for not having warned of the fact (in this connection, it is worth remembering that the principal financial beneficiaries by far of smoking tobacco are not the tobacco companies, but governments that regulate them).

In all the commentary on the case of Dewayne Johnson that I read suggesting that the verdict and award was a triumph for the common man, I did not see once an awareness that the use of glyphosate may have its advantages, that these advantages might be very great, and that no advantages are obtained completely without disadvantages. Once again, we come across the problem that Frédéric Bastiat tried to make apparent to the general public more than a century and a half ago, that of the seen and the unseen. We see a man allegedly made ill with a chemical; we do not see the consequences of prohibiting the use of that chemical. This, however, is not true in Sri Lanka, where they prohibited the use of glyphosate but withdrew the prohibition when production declined by a fifth. And I write this as one not altogether delighted by the fact that our earth is increasingly admixed with synthetic chemicals.

The French Minister of the Environment welcomed the verdict and award in California as a first verdict in what he called the war against the chemical companies. At the same time it is obvious that he knows that the evidence against glyphosate is equivocal at best. He is therefore the worst and most dangerous type of demagogue, namely the demagogue who does not know that he is one. He calls on Europe to apply the precautionary principle without it apparently ever having entered his head — certainly not in his pronouncements as reported in the newspapers — that the precautionary principle might apply also to the prohibition of something that contributes greatly to production. None of this, incidentally, precludes wrongdoing by the company.

The award in the case of Dewayne Johnson seems to me intrinsically absurd, very corrupting, and based more upon populist sentimentality than reason or justice. An unfortunate person of humble status faced a giant company, and it was tempting to suppose that ordinary people speak only the truth while large corporations only tell lies. But vice and virtue, truth and untruth, good fortune and bad are not so conveniently distributed. Populism in justice is probably more destructive in the long run than populism in politics.

Reader Discussion

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on September 04, 2018 at 16:56:22 pm

To a certain extent I agree with you. But I don’t draw the conclusions that you do. It is true that sometimes it is easier to prove someone has “done something wrong” than to prove causation. To prove causation you must prove what an alternative world would have looked like without the defendant’s conduct. At best that is difficult, sometimes impossible, to untangle the lines of causation. As Einstein described, “For us causal connections only exist as features of the theoretical constructs.” Causation is fundamentally a product of a theoretical construct, you must prove the system by which the universe works to prove what caused what (rather than the other way around). To any such system there can easily be multiple perspectives which in which causation appears to occur in different directions and it can be difficult (although not always impossible) to prove them wrong. Take for instance the idea that the Sun revolved around the Earth. To a certain extent, it is correct, relative to us the sun does go around us. And some would say that saying the earth revolves around the sun is wrong (instead that all the planets and the sun itself revolve around the center of gravity of the solar system which is not the center of the sun). Simple physics, but it depends on what we mean by causation with lots of little details that are interwoven that makes things tricky. Often what we have is not a simple a causes b, but a partial feedback loop, a cause changes in b which causes changes in a that causes changes in b etc. Untangling that may be extremely challenging even for experts with decades to study the problem.

And so yes, do we as a society take short cuts in causation that are not proveably correct and introduce some subjectivity, I think that does happen. But I also think it is inevitable consequence of an ex post adjudication system for harm. An ex ante system, which tells people what is harmful up front has some advantages in clarity, but loses flexibility. Regulation is an ex ante system telling people what things cause harm that they are not allowed to do. But those regulations always lack flexibility to deal with quickly changes factual situations and so they tend to prohibit a lot of conduct which is not harmful in the fear that it might be harmful. That is hardly any better and often, in my opinion, causes more damage than just prohibiting the harmful conduct in a more vague way and letting juries determine causation later. Juries are not always right, but they do the best they can with the information provided to them by the parties and a full set of facts that actually occurred. How can we expect regulators to do any better with facts that have not yet occurred?

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Devin Watkins
on September 04, 2018 at 18:02:48 pm

"Juries are not always right, but they do the best they can with the information provided to them by the parties and a full set of facts that actually occurred"

Perhaps, it is because plaintiffs counsel PREFERS the ill-educated, non professional and easily influenced juror.
I could inundate the readers with anecdotal evidence (from my own family) of the plaintiffs counsel in civil cases rejecting those who possess any knowledge that would be relevant to the issue / controversy being tried.

The only disqualifier ought to be for obvious bias not the fact that a man has worked as a civil engineer and the case concerns faulty construction methods.

Now as for populism in justice being worse than populism in politics, Dalrymyple may be forgetting that often there is no difference in effect or in the personnel pushing the latest cause. Look at the Master Settlement Agreement, heck, same cast of characters, State AG's and their hired legal minions, were also later elected to various governing positions (see Christine Gregoire of Wash State). To date most of the "populism" in politics has had a distinctly left-wing tinge - ever expanding entitlements, SSM, LGBT, Global warming, anti-nuclear / coal / fracking, all of which has lead spineless politicos to then legislate against or for those causes, which in turn produces more openings for populism in justice.

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Image of gabe
on September 04, 2018 at 21:21:15 pm

I spent a career in environmental law and litigation addressing the issues of risk, benefit, liability, regulatory costs and compensatory damages arising out of exposure to trace amounts of chemicals as a result of manufacturing and using chemicals, pesticides and food additives. The scientific matters of toxicology, risk assessment and causation are extremely complex and well beyond the capacity of jurors to address with justice and competence. Once such chemicals are approved by competent federal regulatory authorities, tort liability should be unavailable except for the occasions of misuse or where manufacturers fail to disclose adverse information reasonably available or known to them at the time of or after federal approval.

It's not that jurors are "populist" (a word too often misused with negative connotations, as by Dalrymple in his commentary's title.) Rather, members of a jury are like Democrats in Congress, they tend to be prone to claims of "victimhood," empathetic with alleged "victims" and willing to spread to the society at large the cost of "victim" compensation. That's not populism in the political sense; it's the exercise of legal power jurors should not have.

In the interest of equal justice competently achieved federal law should deprive juries of that power in the circumstances which I have described.

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Pukka Luftmensch
on September 05, 2018 at 12:46:59 pm

"The two great legs of any tort action are, first, that someone has done something ** wrong,** and second, that the wrong he has done has caused the plaintiff harm. " [**added]

That may be an unfortunate "simplification" or "semantification" of the evolution of Common Law Torts, as derived from the concept of an obligation (or duty of care) of individuals in their relations; the breach of which (as the "wrong") was once determined by the circumstances of the relationship. There were doctrines for the determination of "negligence" or "fault."

Although my ( that regrettable pronoun again) legal studies were in Common Law and there was Common Law practice in the jurisdiction where I was first admitted to the Bar in 1952 (at 28), "Torts" had already developed into extensive areas of "absolute liability without fault," replacing "duty" with what had become a generally accepted priority of social need for reparations. The impact on individual obligations was somewhat offset by the development of insurance.

That might be labeled a result of "populism;" but it derived from a broad social trend of attitudes toward a need for the repair of damages.

In this essay we read a very common "overlay" of developments in Tort Law upon statutory Product Liability Laws (which, in the U.S. vary by states - but were derived from the mercantile law concept of "merchantability"). Those statutory "laws" express policy vis a vis means for the determinations of obligations as at Common Law.

We are still dealing with developments in what are labeled "punitive" damages. Those would, indeed, seem to turn our legal system to look again at the concept of "duty" in a particular circumstance. However, our entire legal system has been re-oriented [perverted?] (away from determinations of obligations) to a means to ends. That is not some recent "populist" trend - it is a hallmark of our own social order.

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R Richard Schweitzer
on September 05, 2018 at 17:24:21 pm

To both Richard and Pukka:

Quite correct that what Dalrymple erroneously describes as *populism* (oh, that nastiest of all words) is anything but; rather it is simply another manifestation of the envy and bitterness that those, who have been carefully screened by plaintiffs attorneys for that very trait, incompetent (as in Pukka's example) jurors are both free and quite willing to express.
Here now is a chance to stick it to those evil, greedy corporations.

why in the world would any corporation elect a jury trial.

OOPS, what a dolt I am. given a choice between a Stephen Reinhardt or even better H. Lee Sorakin (recall his extemporaneous outbursts during trial at the tobacco companies and his violation of lawyer - client confidentiality) type judge or an easily swayed jury, I guess I, too, would roll the dice and hope that my bullshit was better than the plaintiffs bullshit.

Here is my pipe dram of the day.

The next time a major corporation is subjected to this type of "justice", were I CEO, I would announce to the court, "Do as you may. I intend to shut the company down immediately and lay off 35,000 employees; and as I have no cash when weighed against outstanding debt, HAVE FUN trying to collect.

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Image of gabe
on September 05, 2018 at 18:03:13 pm

[…] good fortune and bad are not so conveniently distributed. Populism in justice is probably more destructive in the long run than populism in […]

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Image of How populist judicial sentimentalism corrupts | Fans of Theodore Dalrymple
How populist judicial sentimentalism corrupts | Fans of Theodore Dalrymple

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.