Mea culpa: a post dedicated to Ted and Walter of Overlawyered
I owe an apology
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I love Overlawyered, have for years. I like their name. Their boast is that the blog:
I like how often they post. I like their emphasis on current events, which makes them relevant. I even frequently agree with them.
The editor is Walter Olson, a Manhattan Institute Think-Tanker who is popular, prolific, and contributes to the Manhattan Institute's PointOfLaw.com as well as the OL site. According to his bio page, the WaPo called him an "intellectual guru of tort reform," which while a bit frightening is at least an admirable accomplishment.
Ted Frank, who is enough of a sucker for punishment to keep coming back while being verbally abused by the admittedly highly pro-plaintiff crowd of frequent commenters at Evan Schaeffer's Legal Underground - totally unofficial motto: you don't have to be pro-plaintiff to comment here, but it apparently helps - is a very smart guy.
He even kindly ran down his own qualifications, when I rather insultingly (I'm afraid) asked for them, in order to imply that he didn't know what he was doing vis-a-vis mathematical arguments, which are admittedly a contentious subject:
Which credentials equal or exceed anything I can boast; I didn't take the GRE at all, never took an econometrics class, got a mere 760 on the math part of the SAT (that's SAT I, for you testing history buffs; I think I got a 780 on the SAT II subject test for math), and have few other accolades to my name. I mean, I *did* win the Most Dumb-Ass Question for Judge Roberts contest, but that's about the best I can think of. In any case, our credentials aren't the point, as we both pointed out; either the statistical arguments we were making were valid, or they weren't, and no amount of mathematical training or academic scholarship can change that. One reason I like math and science; it's pretty objective that way.
Statistics are weird. As a wise man once said,
There's a downside, of course: In relentlessly taking the position that much litigation is frivolous and the cure is broad-based reform of the tort system, they are necessarily aligned with a certain set of parties (defendants, particularly highly exposed or highly attractive defendants) who may be very bad actors, very self-interested bad actors with lots of money and therefore influence. As on the plaintiff's side, money can make us all look like monsters, even when our arguments are in fact based on our pure reason.
In my case, like many another hot-headed young blogger (not to mention lawyer) before me, I let my emotional reaction towards other people - those bad actors, and certain unethical defense counsel, hopefully they all know who they are - spill over into hot words, unfortunate and generally unfounded, against Ted and Walter specifically.
My apology
Mea culpa, mea maxima culpa. As atonement, herewith is a Real Live Conversation I had the other day:
Also by way of making amends: John Day, Ethical Plaintiff's Lawyer and multi-blogger (much like Evan on both counts) guest-posted today on The Economics of Turning Down Cases, from the plaintiff's perspective. Not only is the post interesting, but I made what I think is an interesting and even-handed comment, which again took the opportunity to apologize to Ted for my rude outburst, and compliment his sense of humor - which is quite good, not atypical for lawyers but sadly rare among bloggers with strong personalities.
explores an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public's expense, and resists even modest efforts at reform and accountability.And that's all true, which is admirable.
I like how often they post. I like their emphasis on current events, which makes them relevant. I even frequently agree with them.
The editor is Walter Olson, a Manhattan Institute Think-Tanker who is popular, prolific, and contributes to the Manhattan Institute's PointOfLaw.com as well as the OL site. According to his bio page, the WaPo called him an "intellectual guru of tort reform," which while a bit frightening is at least an admirable accomplishment.
Ted Frank, who is enough of a sucker for punishment to keep coming back while being verbally abused by the admittedly highly pro-plaintiff crowd of frequent commenters at Evan Schaeffer's Legal Underground - totally unofficial motto: you don't have to be pro-plaintiff to comment here, but it apparently helps - is a very smart guy.
He even kindly ran down his own qualifications, when I rather insultingly (I'm afraid) asked for them, in order to imply that he didn't know what he was doing vis-a-vis mathematical arguments, which are admittedly a contentious subject:
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What are my mathematical and statistical credentials? In reverse chronological order, an Olin Fellowship in Law & Economics, a perfect math GRE, an A+ in advanced econometrics and economic modeling classes, a Ford Foundation fellowship, several paying jobs designing spreadsheets, fourth-semester calculus, a 780 math SAT, a scholarship to LSU for winning a Louisiana statewide high school math competition, and I was the Houston Independent School District Number Sense champion for three consecutive years from 1981 to 1983.
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Statistics are weird. As a wise man once said,
Numbers do not lie, but they have the propensity to tell the truth with intent to deceive. - Eric Temple Bell. That is, they can be twisted into supporting any kind of argument, if they are used unethically. I like this other quote, too:
He uses statistics as a drunken man uses lamp-posts—for support rather than illumination. - Andrew LangBack to Ted and Walter: I read their blawg in law school. They cover abuses in the tort system with glee and verve, and I think they probably serve a highly useful purpose: pointing out some of the worst trouble spots in a profession which is otherwise prone to preening and self-congratulation.
There's a downside, of course: In relentlessly taking the position that much litigation is frivolous and the cure is broad-based reform of the tort system, they are necessarily aligned with a certain set of parties (defendants, particularly highly exposed or highly attractive defendants) who may be very bad actors, very self-interested bad actors with lots of money and therefore influence. As on the plaintiff's side, money can make us all look like monsters, even when our arguments are in fact based on our pure reason.
In my case, like many another hot-headed young blogger (not to mention lawyer) before me, I let my emotional reaction towards other people - those bad actors, and certain unethical defense counsel, hopefully they all know who they are - spill over into hot words, unfortunate and generally unfounded, against Ted and Walter specifically.
My apology
Mea culpa, mea maxima culpa. As atonement, herewith is a Real Live Conversation I had the other day:
- Eh Nonymous : I owe some legally conservative (pro-defendant, anti-plaintiffs) blawgers an apology for ranting at them on Evan's blog.
- Anonymous: ?
- Anonymous: what'd you say
- Eh Nonymous : to and at them?
- Anonymous: yeah
- Eh Nonymous : i accused Ted of being mathematically incompetent (he isn't, even if he's making a blatantly pro-defendant statistical argument),
- Eh Nonymous : i accused them of being hopelessly biased (they are, but so am I)
- Eh Nonymous : and i generally ranted about things that aren't really their fault, or are actually not at all their fault.
- Eh Nonymous : the blog host had to calm things down a bit by posting a picture of a Swingline stapler, which was tangentially relevant.
- Anonymous: eh you're capable of understanding others' point of view
- Eh Nonymous : see [Evan's blog and the unfortunate comments in question]
- Anonymous: therefore not hopelessly biased
- Anonymous: just biased
- Anonymous: you see T.O. returned to training camp?
- Anonymous: your eagles may not suck after all
- Eh Nonymous ah. interesting point. hm. if hopeless means "unable to overcome one's own bias to attain a position of Olympian detachment and neutrality," then it's still hopeless.
- Anonymous: haha
- Eh Nonymous : they may still, if it's [so] fragile [that] personality conflicts between and among Owens, Reid, and McNabb et al. [can cause such problems]
Also by way of making amends: John Day, Ethical Plaintiff's Lawyer and multi-blogger (much like Evan on both counts) guest-posted today on The Economics of Turning Down Cases, from the plaintiff's perspective. Not only is the post interesting, but I made what I think is an interesting and even-handed comment, which again took the opportunity to apologize to Ted for my rude outburst, and compliment his sense of humor - which is quite good, not atypical for lawyers but sadly rare among bloggers with strong personalities.
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Related Posts (on one page):
- Mea culpa: a post dedicated to Ted and Walter of Overlawyered
- Thursday mega multi-post: Class actions, professionalism, Ken Lay and Sarbox, Blawg Review, Nigerian Scams for law profs
- Class actions: why certification makes or breaks a case
- Two great Overlawyered posts - Stupid Lawyer Tricks, and Class Action Auctions
Posted by Eh Nonymous on
Wednesday August 17, 2005 at 9:07pm
Nevertheless, I applaud your ability (not to mention willingness) to do some introspection (particularly after moments such as this), and in my humble opinion, it's a desirable trait that has become woefully lacking within the legal community.
I'm also a subscriber to Overlawyered - and although I'm certainly not a lawyer yet (not for at least three years) - I'm most certainly aware of OL's weight in the legal community. Ted Olsons' expamples serve as warnings to the legal community, written from an outsider's (policy analyst's) perspective on blatant abuses committed by commoners, companies, and politicians/patricians - all with the help of legal experts/executioners.
Interesting response, thanks. I may not have been the worst perpetrator, but as in torture allegations or electoral manipulation, "I wasn't doing it as much as those other dudes were" is no excuse at all, none.
I aspire to be a
1 polite commenter
2 thoughtful critic
3 ethical blogger
4 decent and respectful human
5 honest and fair advocate and opponent.
(not necessarily in that order of importance)
To the extent that blind rage makes me discourteous, I am risking 1, 2, maybe 3, possibly 4, and certainly 5.
I will have more to say on the blawg proper about blog etiquette, blawgospheric standards of behavior (that is, the universally applicable informal rules and the formally imposed private rules), and what I expect and demand from commenters here. It's relevant; we're a totally self-regulating and in my opinion rather different form of "mass" media, floating as do all others in a sea of law and social norms.
As to OL's role in the legal community: well, in a sense they're assailing it. If the criticism is fair, great. Ditto the calls for reform. People disagree about whether this really is an outsider's position. Groups like Tillinghast (Towers Perrin) come under fire for earnestly adding up the "costs of the tort system"("$246 billion") without, say...
- disclosing that this includes the transfer of wealth for compensatory damages, which does not "cost" anybody anything in a certain abstract sense, since it merely returns the value of damages inflicted to the person involuntarily deprived of that amount; it's redistributive, but not a "cost" in the economic sense
- admitting that there are _valued goods_ produced by the tort system, such as accountability, public respect for law, sometimes justice, recourse for victims, a Day in Court for both plaintiff and defendant, and other process-type values, none of which are accounted for (added up on the other side of the ledger) in their analysis
- revealing that some of the costs are "costs," in the sense of fees, and other times when an efficient solution would eliminate that payment; and that others are costs of discovery and of investigation, which may in fact be the kind of thing that you can't do without.
On this last point: After an oil tanker runs into a berg in the icy waters, somebody's got to do something. There are externalized costs being imposed on everyone (harm to nature, harm to the environment, harm to individuals nearby, etc.) which should be shifted in whole or in part back onto the responsible individuals and companies. There are the necessary costs of investigation into why it happened, and necessary costs of attempting to prevent it from happening again. There's got to be some effort made to bring the relevant parties to the table, whichever table that is, and meet their concerns.
This stuff is part of the cost of doing business, and the cost of negotiating solutions to problems. It's not a "cost of the tort system" per se, unless it actually is.
Also, about your metaphor: Executioners?
I don't think my statistical argument was "pro-defendant"; I think it's the only relevant statistical argument, and it just happens to lead to a pro-defendant result. There are certainly other circumstances where the same argument would lead to a pro-plaintiff result, such as a Mount Everest tour that foolishly or mendaciously guaranteed a safe ascent but failed to provide it.
The TTP study also doesn't account for the second-order costs of the tort system, such as jobs lost, innovation foregone, or wasteful defensive practices (such as defensive medicine). All in all, these omissions more than make up for what it overcounts, and the TTP number is likely an underestimate of the true cost to the economy. I wouldn't use the TTP study to account for the tort system's cost to society to a three-digit level of accuracy, but I'm comfortable using it for an apples-to-apples comparison of how fast the problem is growing over time, or saying that the magnitude of the problem is in the hundreds of billions of dollars.
Thanks for accepting said apology.
The TTP study, as you indicate, is incomplete.
I believe it has been so thoroughly debunked, and the debunkers themselves debunked, that I can't hope to add to the debate over it. You are more knowledgeable about it than I am, and for good reason; you have spent time and effort understanding it and what it means.
I would diffidently suggest a few things, though:
1) it may be poorly named
2) it may be a carefully researched and minutely careful quantitative study for a metric not related to the real "problem"
3) it is a hot item, and well worth thinking about.
I also want to discuss what it is "the problem" really is. On OL's masthead and sidebar, there are some very carefully crafted statements. It does talk about cost, but the motto is exceedingly good, as I quote it in the main post. "too often," etc.
That motto does not attempt to rigorously quantify the problem, only listing some behavioral contributions to "the problem."
I'd like to analyze and discuss on this blawg, in the future, what precisely that problem is.
If you say that the problem consists of "too many lawyers, too many claims, too high damages and too much regulation," then I'll call foul. May be true, maybe not, but it's controversial.
If you instead say that the problem involves the predictable costs of allowing a mostly unregulated industry of hungry professionals to govern themselves, with concommittant costs to all of society, I will immediately sign on. Further, I would set aside space, time, and effort at this blawg to prove you right. In fact, I think I'll do that anyway.
You and I may wind up disagreeing as to the proper measurement, assessment, and causes, let alone solutions, to the "problem," whatever it may turn out to be.
Let me suggest, then, that the identification of this Problem implicates
1) the normative (Shell: I mean, "proper, ought-to-be") function of Law
2) the proper function of Courts and Lawyers
3) the appropriate balancing to be made between the interests of business, society, and the legal system, which have interests in common but which are not perfectly aligned
4) whether and how much the global interests of
- justice
- efficiency of adjudication of disputes
- predictability via uniformity of outcomes in order to guide and inform norms of conduct
- punishment of bad actors (which is part of justice, but not all of it)
- compensation for legally cognizable injuries, and
- less drag on business
can and should be reconciled.
Again, thanks for continuing this discussion here; I look forward our exchanges and hope to continue them in the future, here or elsewhere.
Regards,
Eh N.
Executioner - Just a little play on words, for those who executes the law, and of course, those who do what you think they do. Why? Because law could be so ominous at times.
Confused? As am I.
Second, regarding the TTP study, I agree that we need to define "the problem" and that many of the bendits (and as Ted said, the costs) are not included (probably because they are nearly impossible to value objectively), but I disagree with a lot of this:
"-disclosing that this includes the transfer of wealth for compensatory damages, which does not "cost" anybody anything in a certain abstract sense, since it merely returns the value of damages inflicted to the person involuntarily deprived of that amount; it's redistributive, but not a "cost" in the economic sense
What is "compensatory damages" in name and in actuality obviously differs (see OL for egregious examples of this.)
"- admitting that there are _valued goods_ produced by the tort system, such as accountability, public respect for law, sometimes justice, recourse for victims, a Day in Court for both plaintiff and defendant, and other process-type values, none of which are accounted for (added up on the other side of the ledger) in their analysis"
The problem here is that those "valued goods" are regularly not only NOT produced but actively hindred by the legal system - "public respect for law" being an obvious example. "sometimes justice" as you even said...
"- revealing that some of the costs are "costs," in the sense of fees, and other times when an efficient solution would eliminate that payment; and that others are costs of discovery and of investigation, which may in fact be the kind of thing that you can't do without."
That is true, but, IMHO, the percentage of costs that you can't reasonably do without is so low as to be nearly negligible.
Here's my (intended to be quick, in fact ridiculously long) reply:
Again, in the economic sense, redistribution has _no net economic costs or gains_. It has individual costs, and corresponding individual gains. Same as robbery. We don't like robbery (economically speaking) because it has the threat of violence, because it's unfair to the person being robbed, because it has negative externalities, and because we have laws that are violated when robbery (some robbery, anyway) takes place.
But it's not economically inefficient, it's neutral. No wealth is created or destroyed by robbery, just moved. So if you wanna argue fairness, welcome to my home turf. But if you're talking about actual _costs_, we'll have to be on someone else's turf: economics, where I am not at home but where I will defy anyone to identify _real_ problems with jury awards. They may be business-inefficient, but I'd have to be shown figures. And maybe some pretty charts.
Compensatory damages are not given each and every and only on the times when someone was injured and someone else is at fault. If it were, we'd have something closer to workman's comp; a no-fault regime that hopefully tracks actual damages, by putting the costs on those who can bear it and leaving problems of proof largely out of the mix. Then the person who ought to be best able to prevent the injuries (the individual, if they want to not lose a finger or an eye; the company, if it's about purchasing safety equipment and doing proper training), will want to do so. Alignment of interests and costs; fewer externalities.
Active hindrances by the legal system usually come from Interests, as in Moneyed or Entrenched, and their mutual opposition and antagonism is the only hope we've got. Cf. Federalism vs. Strong Central Government in our own and other systems. There's a "third way," which involves respect for individual rights and freedoms and responsibilities, but it's largely powerless. The only way it gets out is if the NRA (chuckle) or ACLU or Fed Soc or Americans United or the Jehovah's Witnesses bring suit, and have a powerful constituency - lawyers - on their side. That implicates the counter-bias of the legal system, which is usually in favor of having no lawsuits and therefore no recourse to justice, by turning it into a respected and therefore reasonable and therefore cognizable claim. But it's all power.
The % of costs that we can't do without is negligible?
I don't know what you mean, exactly, but I suspect I disagree. :) Clarify?
"Costs" - like, the costs of doing business? Insurance is the business of spreading risk. Plaintiff's lawyers are in the business of redistributing wealth - often, in the exact opposite way that the defendants are. That's not to say that business "create" and plaintiffs "destroy" - because after all, when a victim is injured, something (health or financial wellbeing) was destroyed or harmed, and the external cost needs to be shifted back. Put that way, plaintiffs' lawyers are (or should be) in the business of justice... which would mean defense lawyers are in the business of injustice. :)
Hopefully, justice does in fact lie somewhere between their positions.
Negligible costs, though. That's a very weird phrase. I've seldom heard of those. Storage space is now effectively free; Mark Liberman at Language Log calculated the cost to almost precisely $0.00 per byte, which is accurate to about four or five or fifteen (I totally forget which) decimal places. Heck, Gmail gives me 2.5 Gigabytes for free. Multiply that a few dozen times, and you start to talk real storage space.
But in the Real World, almost no costs are free. All markets are inefficient. All data is chained, either because of real search costs or because of artificial barriers to knowledge: ignorance, meta-ignorance (not knowing you don't know), lack of tools, lack of skill with the tools, lack of training, lack of communication.
I'm interested in the prospect of drastically lowering those costs. Google lowered one type of "search cost" while bringing up the quality of the results; bless you, Google.
But in Real Life, you have to pay, for example, an architect to survey, and pay again for a second opinion.
Work takes brains and skill takes money; figuring out how to prevent the next Exxon Valdez is _not_ trivial.
It should, of course, be cheaper to _prevent_ an accident than it is to:
- suffer the loss (to property, to reputation, etc.) and then defend the case and then pay any resulting award or settlement, or
- get the law changed to shift the cost back onto the public. Buying legislators isn't cheap these days...
But as I love to point out, businesses are _wildly_ inefficient, in that they fail to recognize and account for not only externalized costs (costs on us, the rest of the world; that's fine, it's not their job) but they also don't even recognize likely _internal_ costs, if it requires imagination or mathematical rigor or common sense to predict them.
Why would you fail to avoid a highly expensive, ruinously reputation-smearing accident by some simple expedient (firing the alcoholics, installing better radios, whatever)? Because you (the corporate defendant) are made of humans, and have accountants not visionaries in control, and because even when you have accountants you usually don't listen.
I'll have more on this (believe it or not) in future posts.
Thanks again for reading and commenting.
*Not all comments welcome. Flippant, facetious, fierce, or fatuous, fine. Fraudulent, felonious, fabricated, facially insufficient, and farkin' futile, fuggeddaboutit.