This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
Why is transit in the US so expensive?
The starting point for this video is an upcoming report on why transit, most notably subways, cost so much more in American than in other developed countries. However, the discussion covers much more than just transit, and discusses how cost disease effects pretty much all public works projects, from roads to sewage. While there are many individual pieces that contribute to inflated prices (outside consultants, unions, red tape, bureaucrats, etc.), they don't really like this explanation. As Chuck points out shortly after 31:00, each of the 2 major political sides can point to a few of these issues to fuel their particular narrative. But, he says, they're incomplete, and miss the real underlying causes. If I were to summarize their description, it seems like the question is mostly one of attitude:
No one cares about cost. People will say they do, but their actions say otherwise. Voters don't, especially with the ability to borrow from the future by issuing bonds. Which means politicians don't, because why would they? And the appointed heads of agencies don't consider it their responsibility to account for cost; they treat cost as fixed and let the legislature decide how to pay for it. Possible sub-point: We treat a lot of these projects as jobs programs and so end up hiring more people than necessary.
There's an underlying assumption everywhere that everything has to be the best, no matter what. Roads in rural areas, that in other countries would be very narrow and winding, are in the US flat, smooth, paved asphalt with 2 lanes in each direction. We don't treat money as a constraint, we just decide we want a thing and then go and get it without regard for the future. Of course, this attitude depends on what one is used to. Boomers, especially, are not used to having these sorts of constraints; Millennials also feel a certain sense of entitlement, but at least have more experience with these constraints. (The latter sentence seems to be more or less speculation, they don't cite any research here).
The conclusion is that nothing will really get fixed until it accumulates to the point of a major economic recession or depression, at which point we'll be forced to actually do something, but not until after we have wasted enormous amounts of time, effort, and resources on poorly planned public projects. Or, if we collectively decide to actually care about these things before then.
Addendum, entirely my own opinion: One reform that I would like to try is to make lawsuits default to "loser pays." Almost every other developed country requires the losing side in a lawsuit to pay for the other side's legal fees. I think it's generally well known that lawsuits are often a tool used to bully people into complying by making that cheaper than defending the lawsuit. Meritless lawsuits are still very expensive to defend, and almost every story I read about cost inflation seems to mention lawsuits at some point. Suing over a missed period in an environmental impact review as is common in CA, or suing because a building would be taller than surrounding "historic" buildings like in Miami, or for minor procedural limitations like with Austin's CodeNext, or Cambridge suing Boston because of "visual impact" of a bridge redesign during the Bid Dig, is very common. I think this happens in medicine, too: Malpractice insurance isn't cheap, but probably far more expensive is the vast amount of extra tests done for reasons of "CYA." Loser pays would discourage lawsuits that are likely to fail, but costly to defend.
(The only thing preventing me from declaring this the Solution to All Cost Disease is that I haven't seen a lot of discussion of lawsuits in educational cost disease. However, one might also think about the attitudes described above in both of those contexts: Do we insist on expensive and impressive-looking inputs, regardless of cost or efficacy? Are we highly insensitive to price? Is it considered unethical to reject the "best" solution because it's costly? Do bears shit in the woods? etc.)
But also, I think you can see similar attitudes reflect in the people filing those lawsuits, or otherwise being obstructionist (such as county officials who drove up the price of CA's HSR by demanding it take circuitous routes). They would rather tank an entire project to benefit millions of people, than not get their pound of flesh or deal with a minor inconvenience of something changing or having their property appreciate in value slightly less quickly. Even as a libertarian who's usually very suspect of "people being selfish ruin everything" style arguments, it seems like borderline narcissism or sociopathy.
The classic rebuttal to this, which I haven't really seen a solution for, is that this effectively makes corporations immune to anything but a very well-funded class action lawsuit, since no individual can afford to pay Disney or Microsoft's legal fees (or that of, say, their hospital) if they lose a lawsuit.
Isn't the classic rebuttal, "cap the payment at the minimum of the two sides' legal fees"? This might take away a lot of the benefit of the proposal too, but it seems to take away most of the downside.
More options
Context Copy link
I've seen that as well, but don't find it a convincing argument. It seems to me like that's the exact same situation as exists today. No individual can afford to bring a suit against a giant corporation even without having to pay their legal bills if they don't win.
That's...really not true. The big companies get involved in legal disputes constantly. There are employment disputes, products liability, premises liability, derivative shareholder actions, contracts claims, etc. etc. etc. You just don't hear about it much because:
not every legal dispute turns into a suit; sometimes the initial discussions after a demand letter is sent reveal one side or the other to be obviously correct, and so a resolution is reached before any suit is filed,
many disputes get swept up in binding arbitration (aka a civil suit's less-formal and more-biased cousin) rather than the actual courts, and
well-north of 90% of the matters that make it into civil court settle, almost always with confidentiality/non-disclosure clauses in the agreement.
Almost everything about the civil courts in the U.S. is designed to encourage this result; would you want your complex, potentially multi-million dollar civil suit to get decided on by a handful of whatever random weirdos weren't smart (or busy) enough to get out of jury duty this week?? Of course not! Also, lawsuit procedure is, as you say, expensive, both to the litigants and to the state (thus the taxpayer). There's a lot of people and infrastructure that go into running modern courts, and fighting modern lawsuits. It's also time-consuming and complicated, and not just for the lawyers you hire to handle the case for you! Discovery procedures can be quite invasive, and do you really want to spend your/your employees' time searching through years and years'-worth of documents to determine what's responsive to the other side's fishing-expedition-style requests**, particularly when you could get in real trouble if you screw it up and miss something? Do you want to have to hire expensive experts to testify to the scientific validity of things that you know, the other side knows, you know the other side knows, etc. etc.? Do you want to have to waste days in preparation for, and then actually sitting for, depositions? No, legal procedure sucks. You don't want to rely on it to resolve all your disputes if there's more efficient ways of doing so.
(Of course this begs the question of why civil procedure got so complicated in the first place, and what the point of the court system is if it's encouraging people to find alternate mechanisms of doing the one thing that courts are allegedly there for in the first place - authoritatively and conclusively determining the various rights and obligations of disputants, and satisfactorily resolving disputes. But this is not a history of American law, nor a treatise on jurisprudential theory, so I'll stop there).
** for the other lawyers on this board, yes I know discovery is supposed to not be a fishing expedition, but let's be real and call a spade a spade here.
More options
Context Copy link
As a practical matter, it's very hard for any individual who's not very wealthy to afford a long, expensive lawsuit. Unless your lawyer thinks the chances of a big payoff are high enough to take it on contingency. But, right now sometimes that happens. People can sue big companies, and sometimes they even win. I don't think the problem of frivolous lawsuits is great enough to justify removing one of the few tools available for making corporations publicly accountable.
I disagree. The cases where a lawyer is going to take the case on contingency are vanishingly rare compared to all the cases where companies use the legal system to bully those with shallower pockets than themselves. And if your case is really that good, then a lawyer should be willing to take it on contingency even under a "loser pays" system. I think that there is very little downside to a "loser pays" system - yes, there will be very rare cases where someone will not sue a megacorp because they can't take the risk, but there will be far more cases where megacorps can't use the threat of legal fees to shut down competition like they can today. It's well worth it, IMO.
More options
Context Copy link
More options
Context Copy link
Well, no. If you have a decent case your lawyer will take it on contingency and front the expenses and take on all the risk. There are some caveats, like you have to accept reasonable settlement offers (so you can't tilt at windmills), but it works fine for most people. Most companies settle.
Yeah, no. It's not exactly easy to get lawyers to take cases on contingency. The system does not in any way work fine for most people today, and legal recourse is available only for those with deep pockets.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Loser pays doesn’t seem realistic at all. It works if Exxon is suing BP over a contract dispute. How does it work if local non-profit is suing big local developer? Just set up a non-profit with limited assets to do the actual lawsuit so that the non-profit is bankrupt if they lose. Or for medical malpractice most Americans have like a month of savings. You think losers paying?
And loser pay sets up a different issue. Suppose small oil producer and by small I mean they have $100 million in assets has a contract with Exxon. Exxon wants out of that contract and let’s say the legalize is in debate and Exxon has a 70% chance of losing. Ok so Exxon tells the other firm their spending $100 million defending the case. Now it’s a bet the company case for the smaller but well capitalized firm. Sure you can have a second arbitration on some reasonable costs standard. A real world example of this would be Epic Games (very rich) suing Apple (no limits on money) on the App Store. Expert witness and lawyers in the case are even without trying to drive up costs from loser pays are in the tens of millions. Realistically under loser pays Epic would no doubt try to fund a similar case with a similarly harmed company with far lower assets that is easy to bankrupt. And if that case wins Epic then sues under that precedent. You would basically create an entirely new legal profession - setting up firms that have standing and no assets to sue larger firms.
For nuisance lawsuits loser pays would change nothing. Bankrupt people don’t care about loser pay since they won’t pay. Wealthier clients who are less likely to be nuisance lawsuits would have to pay lawyers more to set up conduits for their lawsuits.
And the judge tells them to knock it off. I am starting to wonder if the real problem is that US civil cases are mostly heard in State courts where the judge is an answer to the joke "What do you call a lawyer with a room temperature IQ? - Your Honor"
With a few exceptions (like the Delaware Court of Chancery), the US is egregiously unable to make sure important civil cases end up in front of judges who know what they are doing. As far as I can see, there are a few things going on that drive this - the thing that is most unusual internationally is elected judges, but I suspect that a bigger deal is the American tradition of handling all first instance cases in the County they are filed in - most states have no equivalent to the English High Court or the Superior Courts in the Canadian provinces as a dedicated first instance court for important civil cases.
I definitely agree expert judges (and even moreso juries) are an issue in our system.
This is especially true for white collar crime. How can 12 average Americans understand the nuances of insider trading laws? Or the accounting of Enron?
Americas adversarial system doesn’t work that well for complexity.
More options
Context Copy link
More options
Context Copy link
As I pointed out in the comment, almost every other rich country has this. In spite of this, you and @Amadan seem to think it's pretty much impossible. Have you checked what those other countries do in response to the situations you describe? For example, you write:
The link I posted mentioned caps on recoverable fees--did you not even look at it?
Yeah, every other country has a much different legal system and culture than the US. The question is which is the cart and which is the horse WRT fee shifting.
More options
Context Copy link
I only see a Wikipedia article what are you talking about on caps.
And caps wouldn’t solve the issues I’m talking about. If your suing city of development just create a new entity with no assets. If you lose the entity goes bankrupt. If you win then you also get an extra bonus of your legal fees paid. This would seem to drive up costs for the person being sued.
Theoretically I guess you could require someone to be able to afford insurance to sue. But then someone Poor would basically lose the ability to sue if they could find an insurer at a costs they can afford. Anyone can find a cheap lawyer to represent them like legal aid but they couldn’t afford to post collateral or pay an insurance premium to sue.
Instead of throwing heat and assuming your right maybe you haven’t fully thought this out.
The second link in the post. The sentence "I think it's generally well known that lawsuits are often a tool used to bully people ..." links to https://www.manhattan-institute.org/html/greater-justice-lower-cost-how-loser-pays-rule-would-improve-american-legal-system-5891.html
You mentioned multiple hypotheticals; I responded to one. I even quoted it.
Now you're just projecting. I think you just posted the first objection that came to mind without considering any ways it could be overcome? What do you think happens in the countries where this is the rule, and someone tries what you suggested? Do you have any idea, or did you just assume there is no solution? Do you think everyone in every other country is so stupid that they've never thought of it before?
Your comment reminds me of this xkcd--playing tricks with fake companies is something that you can already do. Sometimes it gets around the law and sometimes it doesn't, but it's not like suing any company is currently pointless because they all have 0 assets and are actually owned by Cayman Island shell companies. If it were trivial to set up fake companies for legal purposes, why don't companies currently all do that?
They do. It sometimes even backfires on them when they try to shift business assets from one sub-entity to another, and I have to tell them that some municipal permit they rely upon to keep running their business is nontransferrable (e.g., some tobacco retailer licenses, entertainment permits, game-machine tags, or other, equally-obscure approvals)
More options
Context Copy link
You never addressed any my points in detail. Sure caps on recoverable fees - which I myself said was a solution - but the actual cap matters. Low and it’s meaningless. High and it makes it too risky to challenge 50-50 cases for many litigants.
Companies DO set up different entities to carve out risks. It’s not hard. What’s your solution?
“double the cost in Germany and more than three times the cost in France or the United Kingdom.”
There lead isn’t even that promising. These countries have lower gdp per capita. So a lot of this is just those countries being poorer. About 70% of US gdp. After adjusting for this Germany 1.4 x US and UK/France are 2. Also have socialized medicine and I believe limits on damages which no doubt accounts for a lot of the differences. So where’s the benefit you haven’t even proven
there systems are cheaper (unless you ban medical damages).
How much of the rest can be solved by just limiting damages like say the $1 billion assigned to Alex Jones.
Also an argument that is rest of the world does things in way X and US does things Y is on its face a bad argument. We are massively wealthier than those countries. Shouldn’t they consider in business doing things our way on most things.
Which isn't real anyway, because he doesn't have $1bn to pay. Getting a judgment is one thing; getting actual recovery is another.
More options
Context Copy link
Your points prove too much, namely that any such system should instantly become full of shell companies filing free lawsuits against their competitors. Every other country's legal system has not immediately become overwhelmed by these 0-risk lawsuits, so clearly there is something you're missing. I'm not going to address every one of infinitely many hypothetical situations. TBH, these sorts of schemes seem like they have plenty of trivial solutions which you can probably come up with if you gave it an honest thought, rather than just deciding this idea is bad and then writing any argument that supports one side.
Obviously no system is perfect, but we know for a fact that the American system is very abusable so simply saying "the other system might have this hypothetical problem" isn't convincing.
You can't just take random numbers and multiply them together. The ratio given was already a percent of GDP, so why is this a valid comparison?
Your post has a lot of spelling and grammar errors throughout, most of which I can still parse, but this paragraph isn't even comprehensible.
Fair I missed the percent of gdp.
But again you are failing to address ANY point I am making. You just claim their are solutions. To me this indicates a poorly thought out position. And just an opinion that this sounds good without having any detailed understanding of your position.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Can you address /u/what_a_maroon ‘s argument, who points out that almost every single country other than US has loser-pays rule? If it works for them, why wouldn’t it work here?
He asked him to prove an affirmative claim.
More options
Context Copy link
Do we know it works everywhere else? I don't know what the litigation environment in other countries is like, but expecting we should all accept that "everyone else does it differently" means "everyone else does it better" is a stretch. Do you think perhaps people in those countries might have opinions about how well their system works that are not universally positive?
Also, it's easy to see how an argument like "everyone else does it differently and it works better" would be rejected for issues like health care and gun control, so why shouldn't we assume that the U.S. is sufficiently different with regard to this issue as well?
These are not the same things.
Gun politics: Many people outside US love guns, fight for more expansive gun rights and dream about American style gun freedoms.
The other: No one outside US advocates for American style health care or American style legal system in their country. No one.
But that’s not really a fair comparison. Our legal system isn’t about improving the legal system necessarily but trying to improve transacting or liability. Yes, lawsuits might be expensive but that doesn’t mean the legal system has failed.
So looking at just the input cost (the direct cost of a legal system) doesn’t mean the output (what Bastiat might call the unseen) isn’t worth it.
More options
Context Copy link
I've read Canadian mainstream newspapers favorably comparing the American system (pre-Obamacare) to the Canadian.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
He never addressed my points I can’t argue with a ghost.
Also an argument that is “rest of world does things differently” is a horrible argument. Americas the richer country and the presumption should therefore begin with America does it better . No doubt not always true but by itself everyone else does it differently isn’t a good argument since Americas uniquely rich.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link