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Holger Danske

Holger Danske

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    Entries in Law (3)


    The Long View 2002-04-11: Tobacco, Guns, and Slavery Reparations

    This was John's specialty, and it shows. Twelve years later, these topics are still topical, although they have evolved in interesting ways. Tobacco has become quite the pariah following the capitulation of the tobacco companies, but it isn't done yet. Hipsters insist on smoking even though is it deeply gauche to their betters. Guns are still very much in the news, and now the courts have started to apply strict scrutiny to 2nd Amendment cases. Slavery reparations is the most interesting. This is an idea that will not die. John suspected that slavery reparations could not survive a litigant as combative as the gun manufacturers have been. I think this is likely true, since any attempt to apply slavery reparations using actual legal principles would corrupt everything, including the plaintiff's lawyers. However, there is reason to suspect that slavery reparations are a strategy that still makes sense.

    Tobacco, Guns & Slavery Reparations


    There was an old Monty Python skit, in which supposed "men in the street" were interviewed about their views on taxes. One of them, a staple Monty Python character called Mr. Gumby, says "I think we should tax all people standing in water." Then the camera changes to a wider shot and we see that Mr. Gumby is standing in a stream. He looks down and says "D'oh!" like Homer Simpson himself. This should be the reaction of all thinking people toward the jurisprudential fashion for expanding civil liability to remote defendants based on social evils

    You really don't want to live in a world where these suits could succeed. Even as I write, law professors are bringing suits against a number of entities that did business with slaveholders 150 years ago, or against entities whose predecessors in interest did business with slaveholders, or whose predecessors in interest did business with industries that were somehow connected with slaveholding. One does not quite know what to say about claims like these. Some of the people organizing these suits teach at Ivy League universities, some tiny fraction of whose endowments come from slavery-related businesses. Other organizers were educated at those universities, often in buildings constructed in small part with tuition paid by slave-holding families. By the logic of the reparations suits, the houses of the people bringing them could therefore be attached, since the property was purchased in part with funds paid by tainted institutions, or earned through professional skills gained in part at tainted institutions. As Mr. Gumby would say, "D'oh!"

    Arguably, the beginning of evils was the relaxed attitude toward property confiscation that legislatures began to adopt as part of the effort against organized crime. (The federal RICO statute may yet engulf the whole universe, but that's another story.) However, things did not get out of hand until the anti-cigarette litigation started to succeed. The problem was not so much the claims by individuals that their wills were overborne by nicotine addiction and tobacco industry propaganda. Such claims required little new law. The big change was when the state and federal governments demanded to be paid by the tobacco companies for health costs associated with smoking.

    The logic of those claims is still breathtaking. For one thing, the governments were under no obligation to pay for health costs, so it is hard to see how they could demand compensation for providing a service they undertook voluntarily. For another, smoking probably reduces total health-care costs; it kills people before they can rack up the high medical bills associated with old age. And in fact, courts were not terribly receptive to the arguments from governments for compensation. It is almost certain the claims would have failed, had they been litigated straight through the system. However, the tobacco companies chose not to do that.

    It has been a long time since tobacco was the sort of industry that attracted businessmen of the first caliber. Tobacco products, with few exceptions, are insubstantial commodities, compounded of weeds, paper, and advertising. Tobacco companies are cash cows, run by stolid lawyers and MBAs who chose the industry because it was not supposed to require any imagination. Faced with the choice of years of litigation in defense of abstract legal principles or of buying peace with large settlements, they chose the peace. The cows would be a little thinner, perhaps, but at least the executives could be reasonably sure the herd would not be slaughtered.

    More recently, dozens of governmental entities across the country brought coordinated suits against gun makers. Allegedly, the manufacturers sold guns knowing that they would be bought by criminals, thus running up the bills of municipalities for law enforcement and emergency medical care. This is a slightly better argument than the one brought against the tobacco companies; police protection is a basic function of government, and anyone who makes it harder arguably should have to pay for it. However, that still leaves the fact that the crimes that are costing all the extra money are not being committed by the gun makers, or with their encouragement.

    Gun makers, it seems, are made of sterner stuff than tobacco executives. They have fought the suits tooth and nail, with overwhelming success. The reason they fought is not far to seek. While it is possible to make guns profitably, the business is not the money machine that cigarette making is. Prices of guns cannot be raised arbitrarily. Gun makers simply cannot afford to settle. Also, for better or worse, some people love their guns, including, apparently, the people who make them. Moreover, many people are politically committed to the wide distribution of guns. Ideology, we see, counts for far more than mere nicotine addiction.

    In each of the situations where attempts are being made to generalize liability, there is a class of people with motives that are more or less pure. Tobacco-haters are at least as ideologically committed as gun-lovers; it was their luck to link with tort lawyers at the right point in history. The anti-gun litigation is more political. It looks well for a city government to issue press releases announcing these suits. So far, they have done little harm, though in the long run they will probably cost the cities that bring them some money. The saddest case of all is the reparations movement, which reflects the decay of venerable civil rights organizations into protection rackets. Those organizations are themselves much more vulnerable than any of the entities they are pursuing. They will not survive this project, if they encounter defendants as combative as the gun makers.

    Before anyone attempts some daring new use of the tort system, there is this point to consider: the legal system exists to keep the peace. We don't have tort suits to enforce people's rights or to vindicate justice, though one goal of government is to try to make the courts do those things. We have courts so that private parties will not settle their disputes with gunfire. When the interests of the whole of society are involved, and people have strong opinions on both sides of a question, the matter is best left to politics.

    Why post old articles?

    Who was John J. Reilly?

    All of John's posts here

    An archive of John's site


    The Long View 2002-02-19: Show Trials

    Thomas Sowell wrote a book that this blog entry brings to mind, The Quest for Cosmic Justice. Sowell argued that the search for ultimate justice always seems to end in even greater injustice. I tend to see Sowell's argument in Thomistic terms now. We fallen creatures cannot ensure perfect justice, because we are not perfect. We have to pursue worldly justice, because that is all we are really capable of. Furthermore, it isn't really our job. Vengeance is mine saith the Lord.

    Slobodan Milosevic eventually died in prison, four years after John wrote this. Presumably, he has gone to his just reward.

    Show Trials

    I knew that the International Criminal Tribunal for the Former Republic of Yugoslavia (ICTY) was jinxed when I heard Mary Robinson explaining the indictments. Once the president of the Irish Republic and now the UN High Commissioner for Human Rights, she is one of those invaluable public figures whose mere presence signals that something stupid is happening. In this case, she explained that, no, no one could plea bargain with the accused, notably not with Slobodan Milosevic, who was still in power and arguably willing to trade exile for amnesty. She insisted to some plainly flabbergasted journalists that the ICTY existed to do Justice, universally and irreformably.

    In due course, President Milosevic was thrown out of office by his own exasperated people. Eventually, he was delivered to the Hague to stand trial for war crimes, crimes against humanity, and the violation of various Geneva Conventions. Speaking in his own defense, last week he used the televised proceedings to turn the tables on his accusers. NATO, he said, had deliberately targeted civilian infrastructure during the Kosovo War, acting with wanton indifference to civilian casualties. He said that the West caused the breakup of Yugoslavia by the meddlesome recognition of the independence of the breakaway Republic of Croatia. Milosevic demanded that the leaders of the nations responsible for these things be called to testify.

    It was quite a performance. The sufferings of the Serbs over the last ten years were largely of his own manufacture, but there was just enough truth in his description of the policies of NATO and the West to make it impossible to dismiss. His oratory did nothing to answer the well-founded charges against him, but it did give heart to his supporters back home, and indeed to the enemies of international order everywhere. This is not a good thing.

    It's also not the first time this has happened. The model for the ICTY was the tribunals established by the victorious Allies after the Second World War. The particular precedent for the trail of Milosevic was the Nuremberg Trial of the surviving Nazi leadership in 1946. Few men were ever hanged with greater justice than the defendants in that proceeding, but the star of the show was Hermann Goering.

    The prosecution did not quite lose control of the trial, but those who saw the proceedings were shaken. Goering spent most of the Nazis' dozen years in power shooting morphine, dressing up in opera costumes and stealing works of art; he was almost too zoned to notice when Germany lost the war. Confinement awaiting trial on capital charges, however, cured him of his addictions and concentrated his mind wonderfully. He forcefully argued that the court had no legal foundation and that the Allies' defense of human rights was hypocrisy. As with Milosevic today, his defense did not really address the charges, but it laid the groundwork for a future defense of the regime. The only book I have ever read by David Irving was a biography of Goering, which says the prosecution did lose control of the trial. (Irving has his own blog, by the way; you have to wonder about these people.) The effect of Goering's performance was limited, because it had to pass through the press. That, of course, was before such events could be televised.

    The theoretical basis for international tribunals is still often shaky, particularly when their jurisdiction is mandatory, and most especially when the law they are supposed to apply is criminal. However, the international system has slowly been answering the questions about sovereignty and the sources of law that the existence of such courts raise. An issue that has never been addressed, at least to my knowledge, is this: when the defendants are former heads of governments or responsible ministers, they simply are not subjects, but sovereigns.

    International criminal law is based on the limitation of the traditional scope of sovereign immunity, under which heads of government could not be held liable for their actions in any foreign court. The limitation is not unreasonable, but it does not change the fact the sovereigns are still sovereigns. Officials who have exercised sovereign power in a way contrary to international norms are not being tried for breaking a law, as ordinary subjects would be before a domestic court. Rather, sovereigns are tried for bad policy. Furthermore, they are tried by their peers, by other sovereign powers. Even the world-sovereign that sometimes flickers into existence in international forums is still no higher in the scheme of things that the sovereign being tried.

    Usually, when defendants are tried in criminal cases, they are not permitted to argue that the law they are accused of breaking was a bad idea. That, however, is precisely the kind of argument that the sovereign officials must be permitted to make. They have been called to account in a political dispute, so naturally they talk politics back. Their appeal is not only to the tribunal, or even chiefly to the tribunal. They speak to their own constituents.

    I am not one of those people who think that the idea of international law is incoherent. There is even something to be said for international criminal tribunals; someone has to hang these people. Nonetheless, these prosecutions are a disaster looking for a place to happen.



    Co-dependence of Natural Law and Positive Law