When Madness Walked the Earth

In 2012, the unspeakable happened. A madman, armed with rifle designed for war, slaughtered little children in a school in Sandy Hook, Connecticut. Butchered them. Left their small lifeless bodies bleeding. An act of horror.

The horror deepened when conspiracy theorists began claiming that the parents of the dead children were “actors in an elaborate scheme to enact stricter gun control laws.” The conspiracy theorists asserted that the grief-stricken parents, were, hoaxers; that there had been no slaughter; that the story was fake.

One of the loudest voices promoting this cruel theory has been Alex Jones, “a right-wing conspiracy theorist,” who is a popular radio host, and operates the “conspiracy theory website Infowars.” According to the New York Times, he “has long claimed the shooting was ‘completely fake’ and a ‘giant hoax’ perpetrated by opponents of the Second Amendment.” He “has questioned for years whether 20 children and six adults died in the school massacre in Newtown, Conn.” Haag, M. “Sandy Hook Parents Sue Alex Jones for Defamation, NY Times, April 17, 2018. (All quotes herein are from the Times article).

Now some of the parents are fighting back. On Tuesday, April 17, 2018, three parents whose children were murdered in the school sued Alex Jones for defamation. The tort of defamation is “the offense of injuring a person’s character, fame or reputation by false and malicious statements.” Black’s Law Dictionary, De Luxe Fourth Ed. (1951).

According to the Times, Jones issued “a rambling 10-minute response” to the lawsuit, in which he stated that he “believed Sandy Hook happened.” This comes, however, after repeated statements to the contrary. As the Times reported, the parent’s lawsuits claims that the statements from the Infowars site “were a continuation and elaboration of a years-long campaign to falsely attack the honesty of the Sandy Hook parents, casting them as participants in a ghastly conspiracy and cover-up.”

We will have to see how this lawsuit plays out in court. There is, after all, a right of free speech in the country, guaranteed in the Bill of rights. But it is well-established that there are limits to that speech – You can’t falsely yell “Fire!” in a crowded theater, for example. Did Jones act maliciously? Will he and the staff at Infowars fight this lawsuit, or settle?

By all means, let us protect, defend and preserve our Constitutional right of free speech. But let persons like conspiracy theorists beware of making false, malicious and defamatory statements of such cruelty.


Another Step

The gigantic March for our Lives event on March 24, 2018 was, perhaps, a watershed moment in American efforts to get some measure of control over gun violence and the all-too-frequent mass slaughter of civilians.  Those efforts have been mischaracterized as an effort to repeal the Second Amendment, but that is too simplistic a view. The Marchers did not seek to repeal or eliminate the right to keep and bear arms, set out in the Second Amendment to the Constitution as part of the Bill of Rights.  Rather, they seek universal background checks on all gun sales; raising the federal age of gun ownership and possession to the age of 21; a restoration of the 1994 Federal Assault Weapons Ban; and a ban on the sale of high-capacity magazines in the United States.

That there are, and should be, limits to the rights to keep and bear arms is self-evident.  No-one thinks that there is a Second Amendment right for individuals to own nuclear weapons.  Likewise, no one would give randomly loaded guns to five year olds. Thus, this national dialogue about the scope and extent of the reach of the second amendment is a legitimate part of the evolution of our society. Indeed, the ideas put forth as part of the March are neither new, nor revolutionary, and fall fairly within the first part of the Second Amendment – “A well-regulated militia…”

In this regard, the New York Times ran an interesting Op-Ed on March 24th,  “Stop Shielding Gun Makers,” by Brad S. Karp, and H. Christopher Boehning. In it, the authors point out an additional way to reduce gun violence: Repeal the law that prevents negligent gun manufacturers from being sued.  The law they are talking about is the “Protection of Lawful Commerce in Arms Act” (PLCAA), 15 U.S.C. §§ 7901-7903, which essentially prevents gun manufacturers from being sued when their guns are used to kill civilians.

As the authors note,

A bedrock principle of the American legal system is accountability for wrongdoing. Businesses that cause harm may be held legally responsible in a court of law. Through the imposition of financial liability, our legal system encourages businesses to reduce harm to consumers by making their products safer and disclosing the risks associated with their use.

Thanks in part to the accountability imposed by lawsuits, society knows more about the dangers of smoking, and tobacco companies market their products more responsibly. Automakers continually develop and install new safety features, and these innovations deliver results: From 1975 to 2016, the rate of motor vehicle deaths decreased by nearly half. While motor vehicle deaths have declined over the last two decades, firearm deaths have not: According to the most recent statistics from the Centers for Disease Control and Prevention, more people now die from firearms than motor vehicle accidents.

This disturbing reality exists in large part because, unlike other industries, gun manufacturers and sellers are shielded from legal accountability. . . The law bars most suits against gun manufacturers and sellers for the harm they cause, immunizing the gun industry from accountability for the tens of thousands of gun deaths that occur in the United States each year.

This is bad policy and a bad law, for two reasons.  First, it permits the carnage to continue; Second, it deprives gun makers of incentives to make their guns safer, and implement policies to prevent gun violence.

As to the first point, the authors note the following data:

A recent study shows that firearms are now the third-leading cause of death for children ages 1 to 17 and, according to C.D.C. data, the leading cause of death for 15- to 24-year-olds. Numerous scientific studies indicate that keeping guns in a home endangers its residents. Studies have also shown that guns in the home are far more likely to be used in criminal assaults, homicides, suicides and accidental shootings than in self-defense.

As to the second point, there are technologies that would make guns less easily used, when transferred from the original owner.  And sellers could be trained to identify psychotic people and others who should not purchase guns.  But this law removes incentives to work to minimize the slaughter that guns can cause.

After the Parkland shooting, American Outdoor Brands, Smith & Wesson’s parent company and the manufacturer of the weapon used in the Parkland shooting, announced that it would not “manufacture and market” products with additional safety features (including trigger-locking technology) and that it does not “invest in R. & D. in this area” because doing so would be “irresponsible.” Perhaps the repeal of the law would change this cynical narrative.

The N.R.A. claims that the law is necessary to keep gun manufacturers from going out of business due to baseless lawsuits. That is not true.  As the authors of the Op-Ed note, “our legal system has multiple checks to filter out lawsuits that lack merit. There is no reason for the gun industry to have special protections that are unavailable to other businesses that sell products that pose far less risk of harm.”  Repeal of this harmful law would let manufacturers be held liable when they should be; and that would pose the very real threat of economic harm to them.  In turn, that risk would motivate them to take all necessary steps to reduce the carnage which has seen so many American killed.

Repeal of this law would not be a panacea; probably nothing will prevent some level of gun violence, just as laws against murder do not prevent all murders.  But holding gun manufacturers accountable for their wrongdoing is a useful additional step that should be taken as our society debates the limits of the Second Amendment.


Do You Want To Know Why Tort Law Is Important? I’ll Tell You

The Georgia Supreme court just upheld a $40 million dollar verdict against Chrysler in a case where a little boy burned to death in a Jeep Grand Cherokee. The problem was a plastic fuel tank, at the rear of the jeep, which ignited, so that the child died.  That, in and of itself, is tragic.  But it gets worse.

The Center for Auto Safety knew that the Jeep’s design was unsafe, and petitioned for a recall of the 1993-2004 model Grand Cherokees.  The National Highway Traffic Safety Administration, however, didn’t do that.  According to a present press release from the Center for Auto safety,

Had the . . . 2009 petition for a full recall of the 1993-2004 Jeep Grand Cherokee been acted on in a timely and effective manner, Remi would likely be alive today. Instead, he burned to death at the age of four in a vehicle that should have been designed for his protection, but was designed with a plastic fuel tank located behind the rear axle.

If the National Highway Traffic Safety Administration (NHTSA) had listened to the advice of its own internal experts in 2013, when they recommended the recall not only of the 1993-2004 Jeep Grand Cherokee, but of the 2002-2007 Jeep Liberty as well for the same fire risk, as many as 50 other deaths, including two just last summer in Ohio, probably would have been prevented.

Instead, in the summer of 2013, in a back room in an airport in Detroit, just weeks after career experts recommended a comprehensive approach to address this deadly defect, DOT failed. The agency’s political leadership negotiated with FCA CEO, Sergio Marchionne, to recall only a smaller group of vehicles, and approved what has again and again proven to be an ineffective “fix,” of attaching a trailer hitch to the back of the vehicle. Even Chrysler’s former Vice President of engineering testified under oath that the “tow package [which includes the trailer hitch] does not protect the [fuel] tank.”  The center for Auto Safety, “Georgia Supreme Court Rules Against Chrysler in Jeep Fire Case – Center for Auto Safety Renews Demand for Complete Recall,” March 16, 2018,

The original jury verdict was $150 million dollars, which the judge later reduced to $40 million.  Chrysler appealed, and lost.  Automotive News reports that Fiat Chrysler, which manufactures the Jeep, was “disappointed in the decision.” David Shepardson, “FCA loses appeal of fatal Jeep-fire case before Georgia Supreme Court,” March 15, 2018, Automotive news,

Here’s the kicker:  One of the grounds for the appeal was Chrysler’s claim that “it was prejudicial to raise Fiat Chrysler CEO Sergio Marchionne’s compensation, which totaled more than $68 million, during the trial. But the Supreme Court concluded that “the award was proper, in part because Marchionne was ‘alleged to have specifically interjected himself in a federal safety investigation to the detriment’ of [the boy’s] family.”

So here’s why tort law is important:  At a time when a CEO makes $68 million dollars from knowingly selling dangerous and unsafe motor vehicles, so that little kids burn to death; and the governmental regulatory agencies fail to do their jobs, tort law is the only remedy that people have, to protect their health, lives, safety, and the health, lives and safety of those they love.

Congratulations to James Butler, a Founder of the American Museum of Tort Law, for his untiring and inspiring devotion to the child’s family, and the cause of justice in this case.


Banning Football to Tackle Children’s safety

It is well-established that football causes C.T.E. a devastating injury responsible for dementia, and even death.  See last week’s note, “Football Settlement Excludes Players”. The NFL has even created a billion-dollar fund to pay the claims of players who suffer from CTE as a result of playing football.

And yet, the pipeline is full:  Hundreds of thousand of high school players want to play college football;  many of those seek a career playing football professionally.  Each of those athletes will have to decide if the risk is worth it; whether the significant risk of irreversible brain jury is outweighed by the minute chance of playing football in the NFL.    They, at least, are adults, capable of making their own decisions.

But who will protect children from the brain injuries associated with tackle football?  Who speaks for them?

One New York State assemblyman, at least, is trying.  On January 24, 2018, the New York Times reported on the efforts of New York Sate Assemblyman Michael Benedetto to ban tackle football for children. K. Belson, “New York Legislator Renews Effort to Bar Tackle Football for Children,” NY Times, January 24, 2018. 

It is unlikely that the bill will pass – it doesn’t even have co-sponsor in the State Senate. Yet it is worth doing.  Since he first introduced the bill in 2013, the link between repeated trauma to the head, from football, and C.T.E. has gotten stronger.  “I firmly believe that when we see evidence of the danger to children, we need to act on that,” Benedetto said. “There are laws that you need to use a car seat, wear a bicycle helmet. It’s the same principle.”

Tackle football is a big problem for children for three reasons.  First, the link between tackle football and C.T.E. is now well-established.  Second, lots of kids are at risk:  The article reports that over one million boys play high school football.  And finally, children have a particular risk for C.T.E.: “Doctors note that head hits absorbed by young players are more damaging because their brains are not fully developed, and are less capable of fully repairing themselves. Younger players also have weaker neck muscles, and therefore are less capable of bracing for impact and supporting the weight of a football helmet.”

Fortunately, there is a safer alternative to tackle football, and it is growing:  Flag football.  “[T]he N.F.L., USA Football and other organizations have also begun promoting flag football as a safer alternative for children interested in the game. Flag football participation rates have risen sharply.”

As the article notes, other sports have taken steps to prevent or minimize the likelihood of head trauma to child-athletes.  Because of it’s unique characteristics, though, tackle football remains very dangerous to children.  Because there is a good alternative, in the form of flag football, it is difficult to see who could oppose this effort to protect children from entirely unnecessary, entirely preventable traumatic brain injuries. Perhaps the pendulum will continue to swing in favor of protecting children from injuries of this sort.

hip replacement

The Medical Device Nightmare

Medical devices – artificial hips, etc. – are poorly regulated, and patients who receive them can suffer devastating consequences. A recent New York Times article sheds some light on this shocking industry: Lenzer, J. “Can Your Hip Replacement Kill You?” New York Times, January 13, 2018. The article includes a horrifying anecdote about a physician who received a metal-on-metal artificial hip called the ASR XL, made by Johnson & Johnson. Five years later, the patient had the artificial hip removed, because he was in excruciating pain. Here’s what his surgeon found:

When the surgeon sliced into his hip, what he saw looked like a crankcase full of dirty oil. Tissue surrounding the hip was black. Cobalt leaking from the ASR hip had caused a condition called metallosis, destroying not only local muscle, tendons and ligaments, but harming [the patient’s] heart and brain as well.

This, sadly, is not an isolated occurrence. Despite warnings that the artificial hips ere harming patients, Johnson & Johnson continued to sell the ASR XL model for years, and later sold another similar model, the Pinnacle, until 2013.

9000 patients have now sued Johnson & Johnson for the injuries and losses caused by the hip implants and for failing to warn doctors and patients about its dangers. Recently, a group of six plaintiffs won a verdict of $247 million dollars against Johnson & Johnson for injuries caused by the Pinnacle model.

The numbers are enormous. As the author notes, “about 32 million Americans — or about one in 10 — have at least one medical device implanted, from artificial joints to cardiac stents, surgical mesh, pacemakers, defibrillators, nerve stimulators, replacement lenses in eyes, heart valves and birth control devices.”

It is certainly true that many of these devices have helped many, many patients. But – there are also significant problems. As the article notes:

Medical interventions are now the third-leading cause of death in the United States, and devices play an increasing role in that statistic.

Many people assume that the Food and Drug Administration requires rigorous testing of medical devices before they are approved, the same as the lengthy approval process it requires for new drugs. In fact, most high-risk devices on the market, including implants, have undergone no clinical testing at all.

It’s not just artificial hips, either. “In October 2007, Medtronic, a leading medical device manufacturer, recalled the lead wires in its Sprint Fidelis defibrillator after they were found to fracture and misfire, harming or even killing patients. . . . After the recall, many patients rushed to have the devices removed, but removal posed its own dangers, causing major complications in 15 percent of patients.”

The number of medical devices, which have been recalled, has risen over the least several years, from 8 in 2003, to 117 in 2016. And these are not minor recalls either – these are recalls of Class 1 devices, which the F.D.A. defines as indicating “a reasonable probability” that a device will “cause serious adverse health consequences or death.”

You might think that better governmental oversight and regulation would help ensure the safety of new medical implants and devices.

Yet the Trump administration’s picks to lead the Department of Health and Human Services and the F.D.A. are advocates of deregulation, which they insist will speed the march of “lifesaving” devices to market. This presumes that such speed and innovation is actually lifesaving or life-enhancing. The number of device-related deaths shows how dangerous that presumption is.

The tort system, which lets injured patients sue the manufacturers of dangerous and defective medical devices is – so far, at least – one remedy. Still, prevention is better, and stronger oversight and testing of medical devices might prevent injury to tens of thousands of Americans.


Removing the Veil of Secrecy

On December 19th, 2017, the New York Times reported that Microsoft has “eliminated forced arbitration agreements with employees who make sexual harassment claims and was also supporting a proposed federal law that would widely ban such agreements.” (Wingfield, N. and Silver-Greenberg, J., “Microsoft Moves to End Secrecy in Sexual Harassment Claims,” NY Times, December 19, 2017).

Why is this important? This makes Microsoft the most prominent company to take steps to “end legal agreements that have been criticized for helping to perpetuate sexual abuse in the workplace. Forced arbitration lets companies keep harassment and discrimination claims out of court, effectively cloaking them from public view and, in some cases, allowing serial harassers to continue their conduct for years.” (emphasis added).

Too many companies require their employees to agree to mandatory, and binding arbitration as a condition of employment. In fact, “according to the Economic Policy Institute, more than half of American workers are bound by arbitration clauses.” Now, however, the tide may be turning, at least as it pertains to harassment claims.

As the Times reports, “this month, a bipartisan group of senators, including Lindsey Graham, Republican of South Carolina, and Kirsten Gillibrand, Democrat of New York, proposed legislation that would make forced arbitration in harassment cases unenforceable under federal law.”

“Ms. Gillibrand said that getting rid of the arbitration agreements would benefit employers in the long run. ‘Without the secrecy of mandatory arbitration agreements, serial predators will be less likely to continue climbing the corporate ladder and employees won’t be forced to stay quiet about the harassment they have faced at work, which is good for employees and good for business,’ she said in a statement.”

This is also important because studies have shown that mandatory arbitration clauses result in unfair treatment of employees. As the Times notes:

By using the arbitration clauses to bar people from joining together as a group, employers — both large and small — have effectively taken away one of the few tools that workers have to fight harassment or discrimination. . . In arbitration, the rules tilt heavily in favor of businesses, employment experts said. Part of the problem is that instead of judges, cases are decided by arbitrators who sometimes consider the companies that routinely bring them business their clients, according to interviews with arbitrators.

The more often companies head to arbitration, the better their chances of winning the case, according to the conclusion of a 2011 analysis by Alexander J. S. Colvin, a professor at Cornell University’s School of Industrial and Labor Relations.

Microsoft’s decision to eliminate this mandatory arbitration clause in sexual harassment claims is an important first step. Let us hope that other companies follow Microsoft’s lead.


What victims of sexual assault can learn from car dealers.

Recently, Kevin Webb, a former dealership service manager wrote a fascinating letter to to Automotive News.  It is so startling that it is worth quoting the first four paragraphs, in full:

With the recent downfall of many media people, including Charlie Rose, maybe the entertainment industry could use a lesson from car dealers.  In my 20-plus years in automotive dealership management, the transition from old boys’ club to today was swift and without mercy.

And it was pretty simple:  Dealerships started getting sued.

Throughout the 1990s and 2000s, dealership employers found themselves in court, defending themselves and stores against accusation of unacceptable behavior.

This brought awareness of the issue industrywide and new training programs that showed all employees that the behavior, the suggestions and even girlie calendars in the shop would no longer be tolerated.  All areas of the dealership have been affected, and that’s a great thing.1 (Emphasis added).

And Mr. Webb is onto something.  Those who have been harmed by sexual assault have recently begun speaking out, much more openly, more publicly than ever before.  And that is a good thing.  But there is another, additional remedy; another way to hold the assailants accountable – sue ‘em.  That is, take them to court in a tort lawsuit, seeking damages for the harms that their actions have caused.  This sort of action has two other consequences as well, in addition to whatever monetary recovery the injured victim might receive.  First, the details of the harmful conduct will become public record, part of the trial, and so, open to press and the public.  The attackers will no longer be able to hide behind the shield of confidentiality.

And secondarily, as Webb suggests, one or two significant jury verdicts will send a strong message of deterrence to other would-be assailants, and put them on notice that they, too, can and will be held accountable.

Moreover, because the rules of evidence, and the strength of cross-examination come into play in the courtroom, fraudulent, spurious, or exaggerated claims would be sifted out.

This is not a partisan issue, not republican, nor democratic.  It is not even, necessarily a gender-linked issue. It is rather a powerful tool for victims of assault to hold their attackers to account, and force them to pay for the harms that they have caused.

If you want to change behavior, change the whole culture, and not merely ostracize sexual predators – take ‘em to court.

1 Webb, K., “Hollywood Should Follow Dealers’ Lead,” Letter to the Editor, Automotive News, December 4, 2017



Why All Americans Need the Tort System, And Accountability for Wrongdoing.

The news that up to 143 million Americans’ private data and personal information has been hacked is shocking.  What is worse are the details.  And what is still worse, are corporate efforts to avoid being held accountable for the damage that this catastrophic breach has caused, and may continue to cause.

Here’s what we know:  Equifax is a credit checking company that collects and holds sensitive personal information: social security numbers, credit card numbers, and other personal data, for tens of millions of Americans.  On July 29th, Equifax learned that it had been hacked, and that the sensitive personal information of up to 143 million Americans had been compromised – stolen, and was now available to hackers. This was a major, major security breach.

Shockingly, it was not until September 7th, that Equifax notified the world that it had been hacked; five weeks before Equifax filed an 8-K.  (This is a governmental filing meant to inform investors of a material event, in this case the loss of private and confidential information of 140 million Americans).  This delay is unfathomable and unacceptable.  The hackers who stole the information had five whole weeks to make use of it, before the government was even notified.

And, to make matters worse, the Congress is considering a bill that would shield companies like Equifax from being held accountable for credit reporting abuses.  Representative Barry Loudermilk, who is a Republican congressman from Georgia, has proposed H.R. 2359, a bill that would favor credit companies like Equifax over harmed consumers. In a press release calling for Congressman Loudermilk to withdraw the bill, representatives for the National Association of Consumer Advocates noted that the bill

would amend the federal Fair Credit Reporting Act to essentially shield credit reporting agencies from full accountability for willful and reckless conduct that upends individuals’ employment and financial lives.

     Specifically, the ‘FCRA Liability Harmonization Act’ would eliminate punitive damages, a tool used to punish the worst actors, and would impose an arbitrary $500,000 limit on statutory and actual damages in class actions. These illogical blocks on consumer remedies would obstruct individuals’ legal rights.

Equifax has set up a website where consumers can go to learn if they have been hacked, but as consumer advocates have noted, use of the website may lock injured parties out of the courthouse, since Equifax has

inserted forced arbitration clauses in the terms and conditions of various credit monitoring services that it is encouraging affected consumers to enroll in.

     “Equifax’s use of forced arbitration clauses and class action bans means that consumers cannot band together in court to seek remedies against it,” said Liz Coyle, executive director of Georgia Watch.  “This is unacceptable and will have disastrous effects on the marketplace.”

This is why we have a system of civil justice; where we can go to trial in a court of law, before a jury of our peers, and obtain full justice; where we have the right to hold corporate wrongdoers accountable, in the same way that a drunk driver should be held accountable.

Are you one of the 143 million Americans at risk of identity theft because of this breach?  What are you going to do about it?

What You Can Do

Here are several things you can do to protect your rights:


Defending the Rights of Consumers

The New York Times published an important and excellent Op-Ed on Tuesday, August 22, written by Richard Cordray, the director of the Consumer Financial Protection Bureau. The article, “Let Consumers Sue Companies” highlights an important issue for protection of consumer rights – that is, of your rights.

Cordray lays out the issue succinctly:

Companies have the choice of taking legal action together. Yet consumers are frequently blocked from exercising the same legal right when they believe that companies have wronged them.

That’s because many contracts for products like credit cards and bank accounts have mandatory arbitration clauses that prevent consumers from joining group lawsuits, forcing them to go it alone. For example, a group lawsuit against Wells Fargo for secretly opening phony bank accounts was blocked by arbitration clauses that pushed individual consumers into closed-door proceedings.

This is an important issue, for this reason. Many contracts between a consumer and a giant corporation include two provisions that effectively lock consumers out of the courtroom, even in clear cases of injustice. The first, provides that in any dispute between the consumer and the corporation must be resolved by arbitration, rather than by going to court. The second provides that consumers can’t band to together with other consumers, even if they have suffered the identical wrong.

Why is this a problem? Here is Cordray’s answer:

Almost nobody spends time or money fighting a small fee on their own. As one judge noted, “only a lunatic or a fanatic sues for $30.” When a bank charges illegal fees to millions of customers and then blocks them from suing together, a result is not millions of individual claims, but zero. So the bank gets to pocket millions in ill-gotten gains.

Predictably, lobbyists for corporate interests have “unleashed attacks to overturn the rule, and the House just passed legislation to that end.” Cordray, however, rebuts each of the attacks, as follows:

First, opponents claim that plaintiffs are better served by acting individually than by joining a group lawsuit. This claim is not supported by facts or common sense. Our study contained revealing data on the results of group lawsuits and individual actions. We found that group lawsuits get more money back to more people. In five years of group lawsuits, we tallied an average of $220 million paid to 6.8 million consumers per year. Yet in the arbitration cases we studied, on average, 16 people per year recovered less than $100,000 total.

[The] rule does not ban individual arbitration, as our opponents falsely claim. It simply ensures that consumers have the option of joining together to sue companies. Companies and consumers can still use arbitration to resolve their differences, but companies cannot unilaterally block group lawsuits.

Opponents also claim that the rule benefits lawyers rather than consumers. In reality, lawyers collect a small portion compared with consumers, and only if they succeed. For every $10 that a company pays out for wrongdoing, we found about $8 goes to consumers and $2 goes to pay legal costs. In any event, banks choose to hire lawyers to file class-action lawsuits, and ordinary people deserve to make the same choice.

Finally, this rule does not risk the safety or soundness of the banking system. We estimate the potential costs of this rule for the entire financial system at under $1 billion per year, whereas banks alone made $171 billion in profits last year. The law already bans mandatory arbitration clauses in financial contracts for military service members and in mortgages (the largest consumer financial market), yet the financial sector remains strong.

Cordray makes an additional point, and this one, too, is important. The proposed rule allowing consumers to band together to fight corporate wrongdoing, not only benefits the wronged individuals – it also deters continuing wrongful conduct. As Cordray puts it,

Not only do group lawsuits help consumers recover money they otherwise would forfeit, but they also protect many more consumers by halting and deterring harmful behavior. For example, when banks reordered bank debits to charge more overdraft fees, consumers sued and recovered $1 billion. Most banks have since stopped the practice.

His conclusion should be required reading for everyone who believes in our American system of civil justice:

In truth, by blocking group lawsuits, mandatory arbitration clauses eliminate a powerful means to get justice when a little harm happens to a lot of people. It is the height of hypocrisy for companies to say they’re helping consumers by closing off the very same legal option they use when they’ve been wronged.

A cherished tenet of our justice system is that nobody should escape accountability for breaking the law. Our rule restores consumers’ legal right to stand up for themselves and have their day in court without having to wait on the government to act. That is an idea everyone should support.

The article may be found at, although it may be hidden behind a paywall.

What You Can Do

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When Your Doctor Breaks You

When people who have had profoundly serious wrongs inflicted on them sue, they are suing for money. But the fact is that they don’t want money. What they want, more than anything in the world, is a time machine. They want to be put back to one minute before their spouse was killed by the drunk driver; one hour before their daughter was paralyzed by a careless surgeon; or one day before they were poisoned by a toxic product.

But we don’t have time machines. All we have, is money, to try to help broken people put the shattered piece of the lives back together. It is a system that has worked for centuries, based on jury verdicts.

Generally speaking, the money used to compensate someone who has been wrongfully injured falls into two categories: Economic help, for things like medical bills and lost income or wages; and Non-economic compensation, to make up for what has been lost, or taken, or broken. Take the case of a little girl paralyzed by her surgeon. Totally paralyzed from the chest down. Permanently. Which loss would be greater – economic or non-economic? Well, her medical bills, although big, would not be enormous – she is paralyzed after all. Not much more can be done for her. And she’s a bright little girl, and can use her arms, so she’ll be able to work – no significant lost future income. But what about the non-economic losses? Money for things like pain, suffering, that sort of thing? What does that mean in her case?

Well, it means that the little girl will never play soccer with her playmates; never dance at her high school prom; never walk down the aisle to get married; never give birth to children; never walk down a beach holding hands with her beloved. And you should see her try to turn over in bed at night.

The non-economic damages in a case like that are huge. Her life – everything that makes sweet, and wonderful, and fun, has been broken – permanently, for the rest of her life.

Predictably, the House of Representatives has just passed a bill that would limit how much money the little girl, and others like her, could receive for those non-economic losses, from bad, or careless, or negligent doctors. H.R. 1215, with the Orwellian name “Protecting Access to Care Act of 2017” would limit those amounts that that little girl, or anyone else – everyone else – could get from a bad doctor, to $250,000. Does that seem fair to you? That the most seriously injured people are the ones who get limited justice?

And here’s something else – under the Republican Bill, the jury can’t be told about this cap. In the case of our little girl, a jury, under the supervision of a judge, might return of verdict of 10 million dollars. That is a verdict from an impartial jury, which has heard all the evidence, and reflects the community’s sense of fair compensation for the little girl’s injuries. The jurors would (mistakenly) think that they have served both the cause of justice, and the parties, fairly. But only then, after the trial is all over and the jury goes home, would the judge, hands tied by a remote legislative directive, reduce the verdict. Doesn’t it seem particularly cruel to force the family to go through the trial, learn what the jury’s verdict would have been, only to watch the judge reduce it? Does that seem fair to you? Why do a group of Republican representatives in Washington think that they know more about justice than a local jury which hears all the evidence? And why the secrecy – Why do the Republican want to hide this from the jury? And, for that matter, what about the Constitutional right of trial by jury?

Study after study has shown that medical malpractice lawsuits have a very minimal impact on the costs of healthcare, so the stated purpose for this bill – “reducing the excessive burden the liability system places on the health care delivery system,” is false.

Our system of civil justice is based on two pillars: trial by jury, and holding wrongdoers accountable. Why would the Republicans want to protect bad doctors at the expense of the most severely injured? Why would they limit just, full, and fair compensation for the profoundly injured? Is that what you would want for your little girl?