Why I’m a lawyer in name only….

Every once in a while, I’ll see something which triggers what Leon Kass would probably call my “repugnance” factor. The occasion for my outburst of repugnance is a jury verdict clearing the way for “$1.8 billion for physical and emotional pain and suffering and loss of business and wages” for victims of the 1993 World Trade Center bombing. The legal “reasoning” is that the New York Port Authority is more legally at fault than the terrorists who committed the act:

In what some legal experts characterized as a startling footnote to history, the jury found that the Port Authority was 68 percent at fault for allowing the bombing to occur, while the terrorists who carried out the bombing were 32 percent responsible.
“It’s really hard to get your mind around,” said Mark Geistfeld, a law professor at New York University. “It’s more of a sociological question than it is a legal question. It’s their way of expressing their outrage about the way in which the Port Authority conducted itself.”
The same verdict, Mr. Geistfeld said, might not have been possible 12 years ago, in the immediate aftermath of the 1993 attack, when Americans were less attuned to the reality of terrorism, and the twin towers were still standing.
In practice, any apportionment of fault of 51 percent or more has the same outcome – making the defendant liable for 100 percent of damages that may be awarded in connection with the 1993 bombing.

(HT, Orin Kerr and David Bernstein.)
Part of my outrage is that I used to work as a personal injury lawyer, and I understand the legal theory and the legal thinking behind such an atrocious result.
The law operates in a moral vacuum — totally devoid of common sense. That’s because the lawyers are little more than emotional mouthpieces for their clients, and they have a mindless creature called “the law” behind them. This thing that we call “the law” is constantly “evolving” — especially the tort law variety — and the result is that theories of liability are continually expanding, and the size of awards is constantly escalating. This has produced a class of parasitic multimillionaires who can then either use their millions to run for office, fund politicians who will do their bidding, set up and fund so-called “think tanks,” and even create new media outlets to malign anyone threatening the basis of their wealth.
I consider them parasitic scum, I think their wealth is ill-gotten gain, and hence my moral repugnance. Whether their legal theories are correct, of course, depends on how many courts of appeals will do their bidding, and how many politicians are too cowed to do anything about them.
My distaste for these people is grounded in guilt heightened by deep feelings of personal hypocrisy, for I once belonged to their class. I used to argue for ever-larger verdicts, and ever-expanded theories of tort liability, even though I knew in my heart that this was wrong. And my heart echoed what was in my head, for as a libertarian I never agreed with the theories I promoted. I rationalized it as a “career,” and as a way to “make a living.” Had it not been for AIDS coming along and destroying my social network, I might still be doing something I consider morally abhorrent.
There’s no rational connection between losing friends to AIDS and rejecting the legal system, but what AIDS did was trigger something best characterized as an “epiphanic depression” — in which I found that I could not participate in things which seemed to have no ultimate purpose than to make the world a worse place. Certainly not while the people around me were dying. I suppose I could have had the opposite reaction, and looked for defendants to sue on expanded theories of AIDS liability, but I had just had it with blaming people, perhaps because I felt so overdosed on personal guilt.
Anyway, the guilt made me reject my class — the personal injury lawyer class.
That, however, did nothing to stop the relentless legal theorizing which leads to results like saying New York is twice as guilty as the terrorists. There is no way I or anyone else can stop these people, because they are simply drawn to the money the way cockroaches are drawn to kitchen garbage, and the legal theories are a product of highly motivated, highly intelligent minds. They know how to appeal to human emotions of the juries, and enough of them are judges and politicians that no result is too absurd. Above all, they are champions of the sacrosanct “victim.” The “little guy,” whose life has been ruined and who needs money. And the large, nameless, faceless entities have it. And the romanticized, heroic jury is there to “do justice” — usually to take from the nameless “deep pocket” (who has plenty of money anyway) and give to the victim. It’s applied populism at work, and the fuel is human emotion.
As to the legal theories, they are there, and unfortunately (much to my horror), they are quite logical. Back to the Port Authority verdict:

Stephen Gillers, another NYU law professor, compared the verdict to a landlord-tenant case in which a tenant was mugged in a dark elevator. “From a moral perspective, you’re going to blame the mugger,” he said. “From a legal perspective, the law says, Is there anything the landlord could have done to prevent this?”

That’s a pretty good statement of the law, and you don’t have to be that bright to understand that it does make the Port Authority liable. It’s grounded in communitarianism, and I was disgusted by it years ago, even as I was forced to pay verbal homage to the bogus theories that paid me.
It may sound cruel, but I prefer blaming the mugger — theory be damned.
Thoughts like these, of course, threaten the livelihood of people who see themselves as doing good, of working hard to make the world a better place. But should their view of themselves be controlling over the moral issue of whether they’re in fact making the world a worse place? A few years ago, I took my mandatory “Continuing Legal Education” course, and happened to spend some time hanging out with some typical specimens of the creature I once was. They were nice, intelligent, motivated young men, who wanted two things:

In an unforgettable moment (because it reminded me of a classic movie line), PI lawyer A said to PI lawyer B,
“The big money is in toxics!”
And I am sure it is.
“Toxics” includes such things as discovering that a building has a layer of lead paint buried somewhere, that some child might have eaten some of it, and that some owner somewhere in the title chain has a large enough insurance policy to motivate one of these well-meaning neo-Robin Hoods to charge after the evil company in the name of another victim.
Anyway, the guys who were talking toxics were nice, and I hung out with them. What would have been the point of spoiling their day by telling them they’re making the world a worse place? I wouldn’t have felt any better, they wouldn’t have felt any better, it wouldn’t have caused them to abandon their profession, and besides, from where the hell would I derive any moral authority at all? I don’t claim to have any, nor should I.
And really, just because I don’t like the system they’re caught up in does not mean I wish them ill or dislike them individually. (As Eisenhower once said about Southern segregationists, “These are not bad people.”)
Herein lies the rub: it may be a terrible thing to say, but I think that people who believe they’re doing good when they’re not are far more sinister than ordinary rogues and villains.
So why did I just say they are nice guys?
Hmmmm….. Surely no one today would say that about Southern segregationists. (And quite possibly few would say it about trial lawyers.)
Maybe another illustration will make this clearer. While no one will defend a criminal who might steal $100.00 from you either by force or by fraud, suppose we give a man a badge, a gun, radar equipment, and an unmarked car. And suppose we tell him we’ll pay him a salary if he pulls over and extorts $100.00 from anyone he can catch driving faster than 55 miles per hour on highways on which the average speed is 75 mph. From a purely moral perspective, most of his victims are people committing no crime more serious than driving to or from work. In another age, at another time, the extortionist would be seen as a criminal. A highwayman, even. But despite the fact that he spends his time making a living this way, we tell him that he’s “helping society.” Over time, he will come to believe it himself — even going so far as to tell people that they were “endangering others” by exceeding an absurdly low speed limit put in place for the sole purpose of gathering revenue. Most of these cops are in fact nice guys, and good people — as are the lawyers I recklessly and insensitively called “parasitic scum.”
(Besides, some of my best friends . . .)
The harsh realities of such contradictions only make it worse.
MORE: I don’t mean to sound all gloomy and doomy. It just might be possible that we’ll get a Supreme Court justice who believes in saying “No!” to the endless expansion of theories of liability.