People just don't get that the more we disapprove of someone or something, the more upright and admirable we want their lawyers to be, for the impact that has on the case, on the argument, on the client, and how much we can believe what we're hearing.
She actually forgave me after a bit, or at least continued to talk to me. Apparently her character-judging skills have been sharpened by her thirty-year career as a repo man, and she decided I was okay despite my repulsive vocation.
(She also referred to me, in passing, as a 'pony-lover' later in the evening. I'm hoping that she didn't mean the Catherine-the-Greatesque implications.)
It is testimony to LizardBreath's special charm that by the end of the conversation, Jane was agreeing that people should know better than to smoke, that it was their own fault they got cancer and that big tobacco deserved a defense. And then she went on to explain how her job was repossessing cars, but that it wasn't the fault of the owners that their cars got repossessed, it was the banks' fault for forcing people to buy the cars.
But she was a very nice woman. And she donated lots of money to Team Newyorkistan.
However, the big spender of the evening was LizardBreath, who paid astronomical sums to become President of the Team Newyorkistan Back Seat Drivers' Club.
This burning desire to be chief of the back seat drivers was not surprising to those of us who know her.
It is testimony to LizardBreath's special charm that by the end of the conversation, Jane was agreeing that people should know better than to smoke, that it was their own fault they got cancer and that big tobacco deserved a defense.
I so did not convince her of anything. I just stood there, laughing helplessly, as the conversation happened to me. She really did seem like a lovely, sweet person, and I can't disagree with her at all about my job.
Ack, wait, is that the title? I'm thinking of that book we discussed a month or so back that told hopeful young men how to pick up women in bars by talking about ridiculous stuff.
Meh, the third part doesn't follow from the first two. It is true, along the lines of "even terrorists deserve a defense," but even if it's smokers' fault they get cancer that doesn't mean it's not also tobacco companies' fault.
I would like to believe big tobacco deserves a defense without believing that people should be held accountable for not knowing, or not properly valuing that it would be better not to smoke, or believing it was therefore their own fault. I could agree if some "not entirely"s would be judiciously inserted here and there.
doesn't mean it's not also tobacco companies' fault.
At the risk of letting seriousness break out regarding what is supposed to be a funny description of a funny conversation, "at fault" does not equal "not entitled to a defense." Further, because a company did bad thing "X" does not mean that they should be denied a defense to the charge that they did bad thing "Y"--which they did not do.
I think that the people running big tobacco companies are knowingly doing bad things (that is, selling cancer-causing, addictive products), and should make their money doing something else. I wouldn't be opposed to a nationwide ban on the selling of tobacco. (Ask me to reconcile this with my position on drug legalization -- I can, kind of, but it will make your head hurt.)
That said, applying the same standards of legal responsibility to the tobacco companies as we do to everyone else, I think that the legal claims against them are ill-founded -- generally, if you sell a dangerous product but fully disclose the associated risks (as the tobacco companies have, however unwillingly, since 1964), you aren't liable when someone hurts themselves with it. So someone should be representing them, and the defenses should be successful.
However, it shouldn't be me. I don't like working for bad people. I really need to get out of this job.
I wouldn't be opposed to a nationwide ban on the selling of tobacco.
You'd just see black-market tobacco, with all the coincident crime that surrounds black market substances. More than squaring this argument against drug legalization, I'd like to see whay a ban on tobacco shouldn't be accompanied by a ban on alcohol, which is also addictive and associated with a host of fatal diseases.
You'd just see black-market tobacco, with all the coincident crime that surrounds black market substances.
My answer to this is that people don't want to smoke furtively, or not as furtively as they would have to if tobacco were illegal. Smoking pot, for example, is an event for most users -- making a private occasion of it, someplace where you won't get caught, doesn't particularly detract from the pleasure of it, so buying it on the black market is okay. Tobacco, on the other hand, is something that people want to use constantly throughout the day -- they want a cigarette every hour or so. Someone kept from using tobacco publicly or openly is, I think, more likely to become a non-smoker than someone kept from using pot publicly or openly is from becoming a non-pot-smoker.
(I'd say that alcohol is on the pot end of the spectrum, where a ban would be useless, and coffee is with tobacco. I love coffee, and drink buckets, and if it were banned I would have a very nasty week of withdrawal and I'd miss it, but I can't see breaking the law to get it. Each cup of coffee isn't worth it -- what I want from coffee is easy access to all the coffee I can drink, when I want it.)
"at fault" does not equal "not entitled to a defense.
I already conceded that in 11, I thought, with the point about terrorists. Also agreed about bad thing Y.
Nobody, but nobody, is unaware of the fact that smoking will kill you.
I thought that surveys shows that people still underestimate the risk of smoking. Don't know how much of this is attributable to people being dumb and how much to anything to tobacco companies may have done.
I don't want to be lecturing anyone though, it's important that we be governed by the rule of law (though I think it's a shame that tobacco companies get so much more law than assorted poor people and random citizens the government wants to throw in jail), and for that reason the tobacco companies deserve a defense.
19: I think the standard argument is that it's a lot easier to drink alcohol without getting addicted than it is to smoke without getting addicted. The level of alcohol consumption that most people are at is not high enough to cause health problems, as opposed to the tobacco consumption of most smokers, I guess. I don't really buy this, though, I know many 'casual' smokers (as in, they smoke at bars and such, but not as a regular habit).
people don't want to smoke furtively, or not as furtively as they would have to if tobacco were illegal
I think you might be surprised on that point. My father-in-law has been smoking furtively for a decade, since by my mother-in-law's decree, it is illegal.
I might be wrong; I'm guessing here. But your FIL can smoke openly outside of your MIL's presence; he's not hiding from society, he's hiding from one person. (And she so has him busted. I was raised by smokers, and I'm about the only non-smoker I know who likes the smell, but it's distinctive, and it's strong. If he's smoking, she knows about it.)
23: My understanding is that casual smokers are still putting themselves at risk for health problems. OTOH, my understanding is that alcohol companies depend on problem drinkers for a considerable portion of their revenue.
Yes, fil and mil have some sort of dance going here. I like the smell too, I think a lot of non-smokers do, and there are vast cultural connections. Read a book about it called Cigarettes Are Sublime once.
casual smokers are still putting themselves at risk for health problems
Yep. Y'know, this country is filled to the brim with people who are doing unhealthy things, that they know full well aren't healthy. I believe very strongly in people taking responsibility for their own bad decisions. Class action suits against pharma companies for burying results of poor safety profiles (e.g., Vioxx) are one thing. But smokers know the health risks, have all sorts of smoking cessation aids at their disposal, and choose to smoke anyhow.
Tobacco companies sell a product for which there is a demand. Similarly, there is a demand for grain alcohol and 2500-calorie burgers. The onus of responsibility falls on the consumer, who can't claim that they are anything but informed of the risks. Otherwise, it's a bit like America blaming Colombia for our cocaine habit.
that they know full well aren't healthy... smokers know the health risks
Matt F didn't seem to know that casual smoking wasn't healthy. I'd be surprised if he wasn't representative. Whether or not this ignorance originates with tobacco companies in a way that should make them legally liable, I cannot say.
As far as the health risks of casual smoking, I think it's worth pointing them out even if you're not using that as a club to beat tobacco companies, so people will be better informed about the health risks.
Ok, one, "big tobacco" is hardly in need of having it's right to a defense, defended. Hence the "big" part. If anything, it's the right to a defense of the individual smoker, with his or her limited inidivudal wealth, that needs defending.
Second of all, the problem isn't that people don't know that smoking is bad for you; it's that they underestimate the highly addictive nature of that "monthly" cigarette. Or, more realistically, the "I only smoke when I drink" or "I only smoke once in a while" approach is hard to maintain over time.
This might be less the case if cigarettes weren't sold in packs of twenty and cartons of 200, and if they weren't marketed as heavily as they are. But it's damn hard to be an occasional smoker.
I would thin "re-persons" would work best; yes, it leaves out any syllable representing possession, but picks up a reverberent connection to "reap." Also suggests something manufactured and inhuman.
Smoking affects families and survivors too, not just smokers. People do not voluntarily choose to have the breadwinner die of cancer at age 52.
Considering this, as well as the highly addictive nature of cigarettes, their extremely toxic effects, and the way they're effectively marketed to teenagers and subteens, I don't think that "responsibility for one's own actions" quite covers it.
I don't understand what you're saying here. What does the individual smoker need legal defense against?
underestimate the highly addictive nature
Again, the fact that they underestimate it is their own fault. No medical evidence has ever been trumpeted more loudly, except perhaps methods for pregnancy or HIV prevention. "I didn't think that I'd end up addicted to heroin. I was just doing it on the weekends."
The problem I have with Apo's conclusion is that it leaves the situation as bad as it started, merely assigning blame to the smoker and absolving the cigarette companies. If it were up to me I guess I would slap the dying smokers on the wrist while bankrupting the cigarette companies and prosecuting everyone prosecutable.
LB really does need a different job, though. If there's one principle that's secure in the US of A, it's that malefactors of great wealth get adequate legal representation.
"Is their own fault" in a strict, semi-libertarian way, sure. But that requires discounting human psychology.
By "defense," I mean, "need their interests defended," obviously. No one is suing smokers for smoking (well, mostly, I don't think). But I think the class-action-lawsuit-bringers are in the right on this one.
Nobody answered my question about whether the tabacco execs lied about whether they knew about the addictive properties of nicotine. I swear I've seen footage of their congressional testimony over and over. I don't know the law, but if they did, it seems right to me that they be subject to civil suits for fraud, whether or not smokers really knew better anyway, as a deterrant against similarly deceptive behavior about their products by other companies.
It depends on their arguments. For instance, the possibility that cigarettes were developed to make them more addictive is a very valid claim, which shifts my sense of right somewhat. I don't know how that's coming.
No, I'd just make the cigarette companies' lives a living hell. Banning cigarettes would be counterproductive, but making the creeps squeal would be some compensation.
I don't see it as strict or semi-libertarian. It's just common sense. We all know cigarettes are addictive and deadly. The companies selling them admit as much and put it plainly on every package they sell. Some people still want them, even when fully apprised of the risks, along with a host of other unhealthy products.
the class-action-lawsuit-bringers are in the right on this one
45 - The execs did admit it (beginning with Liggett Group), and that was the basis for the tobacco settlement that has so far resulted in $41 billion dollars worth of payments from RJR, Phillip Morris, and Lorillard to the states (with another 6.5 billion due next month).
Are teenagers able to really be aware of the long-term risks? I forget the actual number, but a huge percentage of smokers start before they're 18. The 'rational, informed choice' thing works for adults who are contemplating starting smoking, but if you're already addicted, it's a different story.
Nobody answered my question about whether the tabacco execs lied about whether they knew about the addictive properties of nicotine.
This isn't an area in which I've got the solid facts at my fingertips -- that is, I don't have a mental list of everything tobacco execs have said, and I welcome counterexamples. That said, my understanding is that the objectionable remarks you're talking about aren't lies, they're weasels. It's not people (in the last 40 years, at least) saying "Tobacco isn't addictive", it's people saying "It's our position as a company that science has not incontrovertibly established that tobacco is addictive."
Now, I'm not going to defend that sort of thing as a moral thing to say, and I'm not going to say that it's what the same executives would necessarily say at home, speaking out of the public eye. But it's within the realm of honesty that we don't impose civil liaibility for in most contexts -- it's not false, there are real scientists who argue about how best to define addiction and whether tobacco falls inside or outside that definition, it's just slippery and self-serving.
I don't know the law, but if they did, it seems right to me that they be subject to civil suits for fraud, whether or not smokers really knew better anyway, as a deterrant against similarly deceptive behavior about their products by other companies.
An issue that gets elided by laypeople in this context is that to recover damages for fraud from someone who lied to you, you have to show both that they lied, and that their lies caused the bad thing that happened. The 'lies' here are pretty weak -- there was full disclosure on every pack, and the things that get complained about are more like failures of the tobacco companies to say the worst things that could be said about cigarettes with vigor and enthusiasm, despite the fact that all sorts of other people were saying those things.
The causation is even weaker. Apo smokes; my sister the surgeon smokes -- obviously they both know everything bad cigarettes are going to do to you. How can you say that lies told by the tobacco companies caused the health damage they're presumably both suffering? If the tobacco companies had said that cigarettes were addictive, would it have stopped Apo from smoking? I think the answer is clearly 'no'. And there's no good way to separate Apo, who wasn't defrauded, from someone else who may have been, in a class action.
(Talking about this makes me sick. I really despise the tobacco companies, and I hate defending them, but their legal position is solid. Any interpretation of the law that makes them liable would be, to put it technically, really fucked up if you applied it to defendants generally.)
50 - But it isn't legal to sell them to minors. The fault there is with the vendor, not the manufacturer.
Look, I know the cigarette companies aren't on the side of the angels (nor McDonalds, Coca-Cola, Seagrams, etc.), but at some point, selling a legal product to willing adults is exactly that.
Also, if there was some way to ensure that underage people really didn't smoke, then sure, that's fine. But as it is, very few people have really consented, in a broad sense, to being addicted to cigarettes. This isn't an argument for banning, people do continue to buy cigarettes willingly and they're free to do so. But it's not really true to say that smokers have been properly informed of the risks; the most important time to be informed of them is before you start smoking, and most people aren't really able to understand those risks at the age when they start.
Not really sure what I'm getting at, but I don't think the tobacco companies can honestly say "hey, we warned you", in anything more than a covering-their-asses sense.
Apo is saying that the tobacco companies have been warning us about the dangers of tobacco smoking for all these years.
Not exactly. They were forced by law to do so, and after years of delay and lots of kicking and screaming they had no choice but to comply. There was no agency on their part. So now it's a bit odd to see their involuntary and reluctant actions to be used in their defense.
I would be very happy to see some intermediate position between what we have now and total illegalization. When I keep hearing about this "legal product" it's supposed to make me say, "OK, no problem then!", whereas it actually makes me look at the laws. At one time it seemed that we were granddaddying in those already addicted and letting those making their livings in the biz gradually phase it out of it, but actually the tobacco industry is maintaining its power to addict and kill people (who have no one to blame for themselves) with a legal product.
A long time ago I tried to be fair and rational in debates of this type, but as I gradually came to understand how enormous the contempt is that normal Americans feel toward people who try to be fair and rational, and how great their love was for mean-minded liars, I decided to conform to the norm and get in step with America.
That said, I don't feel as militant about alcohol because 1) I enjoy it, with only moderate harm so far, 2) lots of people enjoy alcohol with moderate or no harm, and 3) both of my parents died of tobacco-related causes, though neither died prematurely and 4) anyone who disagrees with me can go fuck themselves. (Like I said -- I'm no longer a hapless fair and balanced weenie).
Same for cheeseburgers, though I don't really enjoy cheeseburgers.
John, you'll get no argument from me that the cigarette companies have historically been bad actors. However, they did comply, however unwillingly, and did so forty years ago.
some intermediate position
Like what? I mean, it's all well and good to shake our fingers and holler about how evil the MerchantsOfDeath™ are (and they are), but rhetoric aside, what's the remedy you're proposing that doesn't involve banning the sale of cigarettes?
I don't think that an intermediate position is unimaginable. Raising taxes has been moderately successful. Shaming smokers and creating non-smoking areas has been moderately successful. Aggressively enforcing all laws in a punitive, nit-picky way might do some good.
Since the American people have renounced neither retribution nor prohibition, why should anti-smoking people do so? And if the people who stalk, harass, and murder law-abiding abortionists have now gained control the Supreme Court after decades of effort, maybe we should take a lesson from them.
I don't think that an intermediate position is unimaginable. Raising taxes has been moderately successful. Shaming smokers and creating non-smoking areas has been moderately successful. Aggressively enforcing all laws in a punitive, nit-picky way might do some good.
I'd agree with all of these things, and still think that the tort cases against the tobacco companies are ill-founded. Regulate and tax the hell out of them on a going-forward basis, but don't warp tort law by defining conduct as tortious from the tobacco companies that wouldn't be if the defendant were less loathsome.
LB: I understand the companies had excellent legal advice before constructing their statements --- they are scum, but they are very careful scum. On a somewhat related note though, what is the rough situtation with respect to their attempts to subvert the science? As I understand it, it is pretty uncontroversial that they have done this, but is there even any framework for legal recourse?
apo: Perhaps banning the advertizing of cigarettes? I haven't really thought that one through, but it seems that this is the primary vector of `legal, but underhanded' that they currently engage in. I guess you could say the same for alchohol, but it isn't nearly as bad. As I said, haven't thought about it enought to have an opinion about the workability/desireability of this, though....
55-alcohol doesn't have the same problem of underage dependency that cigarettes do, I guess would be the difference. Whether this is just an enforcement issue, or something more inherrant, I don't know.
On a somewhat related note though, what is the rough situtation with respect to their attempts to subvert the science? As I understand it, it is pretty uncontroversial that they have done this, but is there even any framework for legal recourse?
What does 'subvert the science' mean? They sponsored a great deal of research in the hopes of either proving that tobacco was harmless and makes your hair shiny, or at least making people think that they were interested in whether tobacco kills people. And they held on to the bitter end claiming that it wasn't absolutely proven that tobacco kills people.
But they didn't have any control over science generally -- the science that lead to, say, the 1964 Surgeon General's report was outside of their control and not subject to their interference. How do you think their actions with respect to research damaged anyone?
61 gets it exactly right. I'm fine with them hiking the hell out of cigarette taxes, and I'm sure I'd smoke less as a result. No smoking areas are great; I hate eating within smelling range of cigarette smoke. Hate it! The anti-smoking campaigns aimed at teens seem to have yielded positive results as well. More power to 'em!
I can't speak for everybody, but shame is a very ineffective (and indeed counter-productive) strategy with this smoker. I might just follow you down the street blowing smoke at you. Because, y'know, I don't come to the rest stop and hassle you about the hand jobs.
As I understand it, they did this is several ways.
- any time you pay for scientific research and then censor the results, it subverts the process. (big pharma falls into this pattern also). I realise this isn't clear cut (it it was, it should be illegal)
- buying a few ph.d's and having them generate reams of bogus or near-bogus `research' is an effective foot dragging technique
- attempting to discredit research you don't like through non-scientific means
- making in more difficult for others to do research in the area (usually through political means)
I'll dig up references if I have a chance.
Of course, you can't stop other people doing the research, but my impression is that scientific consensus about tobacco effects should have been reached long before it was, and, like political consensus about it the delay was pretty much a direct result of tobacco firms actions (direct and indirect).
Of course, you can't stop other people doing the research, but my impression is that scientific consensus about tobacco effects should have been reached long before it was, and, like political consensus about it the delay was pretty much a direct result of tobacco firms actions (direct and indirect).
I'm thinking about this as a lawyer, so when things happened is important to me. I'd say 'scientific consensus' happened at least with the 1964 Surgeon General's report -- probably well before that. If you're arguing that the tobacco companies delayed that moment, you're probably right that they tried to, and probably right that they did, somewhat. But given stautes of limitations and so forth, any bad acts that happened more than 40 years ago really shouldn't be relevant in a court of law today.
Are you saying that scientific consensus was later than that?
Tobacco companies pioneered the "flood of confusion" tactic used to make it seem that there are two sides to a story when there really isn't. This is the Rove-Dubya method too, and should be added to the indictment.
This is one of the things that has made it more or less impossible for me to talk to people about politics in a civil manner. You have to keep knocking down these phony planted stories and quibbles and misrepresentations and anecdotes over and over again, and eventually you lose your respect for the people you're trying to talk to and decide to enjoy yourself in your pitiful, hateful way, and just vent.
Like, LizardBreath, I look at this as a lawyer and as someone who values the rule of law. It might make you feel good to see a person or industry you have decided is "evil" be denied the same legal rights everyone else gets, but we all lose when it happens. Part of the disconnect here may be that you may not realize the extent to which some judges simply ignore the law (or at least bend it in very strange shapes) to punish people or industries they have decided are evil. In some areas, such as civil racketeering law, there are two clear strands of law, one applied to most defendants and one applied to defendants judges do not like. Same facts, different result--the only difference is the defendant.
oh bah. Cigarettes are of course very unhealthy, and it's much better not to smoke, but exaggerating the argument just makes the arguer look unbalanced and easier to ignore.
I was a casual smoker for 6 years: at first Lucky Strikes (woo hoo) and then Nat Shermans. At first only in bars, and then later I used them to get me in the right mode for writing - so you'd think I'd be a prime candidate for addiction. And yet no - I never got addicted, or felt like I *needed* a cigarette - it must not be in my chemistry. Nicotine addiction doesn't ineluctably happen to everyone - it's not heroin.
I stopped smoking 5 years ago, for budgetary and boyfriendly reasons. It was really easy. No hullaballo or great waves of missing it; just stopped. Never started again. Calling it "quitting" makes it sound like a bigger deal than it was. Which isn't to deny it isn't hard for some people, but just to say the exaggerations about the evils of smoking are misleading. And probably counterproductive.
as for shaming smokers, esp. if they are smoking outdoors: that just makes the shamer a little bit nastier as a human being, and the world a little bit more of a crappy place.
It we be nice if we did get the same rights that tobacco gets. In theory we do get those rights, but in practice this is only if we can afford the lawyers.
Worrying about possible unfairness to Big Tobacco in some hypothetical circumstance when its rights are actually violated isn't at the top of my civil rights worry list. I think more about my non-hypothetical sister who was actually cheated out of the greater part of her divorce settlement because she couldn't afford the legal fees. This is a personal anecdote, but I could dig up many much more horrific examples with a moderate amount of effort.
I'll bet I'm in the minority here, but I want to throw this out there:
I'm a casual smoker, when I drink, etc. I used to smoke often, but I was an athlete in high school and so I switched to...chewing tobacco!
I use chewing tobacco (dip) on a regular basis. I am well aware of the health risks.
Chewing tobacco is widely used (in the South, at least) but rarely talked about because it is widely derided by those who don't use it.
In fact, it may be gaining popularity by virtue of "non-smoking areas" where dipping is perfectly acceptable because there are no effects to anyone other than the user.
That isn't my concern either. I don't care about the fortunes of Phillip Morris or RJR, what with owning stock in neither, and I'm not out marching in their defense. Fuck 'em. I still think the lawsuits are profoundly silly and without legal merit, and I hate that 1) every stupid thing in this country ends up in the court system, and 2) so few people are willing to accept responsibility for their own behavior. Those aren't incompatible stances.
However, having worked around people who dip or chew, I would make the aesthetic point that the multiple random cups of tobacco spit are less than pleasant, particularly if you mistake one of them for your cup of soda.
It we be nice if we did get the same rights that tobacco gets. In theory we do get those rights, but in practice this is only if we can afford the lawyers.
I'm not so much worried about the rights of big tobacco, I'm worried about the structure of the law. If big tobacco's rights are violated casually (Or, actually, I don't even want to talk about it in terms of rights -- if big tobacco is found liable for conduct that would not, from another actor, be considered tortious) then the cases in which this happens are on the books, and can be used as legal support for screwy cases against the next defendant. It's bad for the functioning of the legal system.
I think more about my non-hypothetical sister who was actually cheated out of the greater part of her divorce settlement because she couldn't afford the legal fees. This is a personal anecdote, but I could dig up many much more horrific examples with a moderate amount of effort.
This, I think, is a huge problem, but a different one. I am horrified by (and was fairly unaware of, before I started practicing) the degree to which the courthouse doors are shut to people who aren't wealthy. There are some circumstances where poor and middle-class people can use the courts for redress (class actions, cases that make sense for contingency fees) but largely, lawyers are things that only the very wealthy can afford.
78- The rule in my apartment (roommate and friends who also dip) is that all 'spitters' must have caps. So we save empty water bottles and use those. They are not easily mistaken for something different and are easy to dispose of.
I realize brown, thick liquid in a water bottle looks particularly gross, but it's better than spills or inadvertant consumption.
81- This is why people who don't dip hate it so much. It is a dirty habit, much dirtier than smoking, just by nature of having to spit out the juice.
That may be the most repulsive thing I've ever read.
Well, at least there is no secondhand smoke (an important consideration when you are working in close quarters). And most people try to be considerate.
Apostropher, I don't particularly want to shame you for smoking, and I have no particular stake in the lawsuits either. Like LB, I favor the rule of law. I do have a stake in the idea that tobacco companies are absolved of moral responsibility for what they do if smokers know what they're getting into.
And I want to pick on this:
But it isn't legal to sell them to minors. The fault there is with the vendor, not the manufacturer.
This is like saying "The Bush Administration knows that torture is illegal [well, maybe they don't]. The fault is with the grunts who do it, not with the higher-ups who said that the Geneva Conventions didn't apply, and who demanded more information, and who told the grunts to use aggressive tactics, etc. etc. etc."
The tobacco companies, I'm pretty sure, know full well that kids are smoking. And they count on the revenue from the smokers who get addicted as kids. And they market to those kids. And they know that vendors are going to have an incentive to sell to kids, and little incentive not to.
Conclusion: It looks like the tobacco companies are pushing cigarettes to kids. Passing out a bunch of signs saying "Don't sell cigarettes to kids" doesn't get them off the hook.
(At least, it doesn't follow from "selling cigarettes to kids is illegal" that only the vendor bears moral responsibility when that happens.)
Well, the structure of the law works very well for big tobacco and pretty much anyone with deep pockets, and not for a lot of other people.
In this and other cases when lawsuits are brought, often it's a last-ditch effort by people who have found that the electoral process, the government regulation process, big chunks of the media, and criminal justice have all een pretty much neutralized by the guys with the deep pockets.
Filing a lawsuit is pretty much the only thing you can do unilaterally when your elected representatives have been bought.
94- I'm not from Montana but I chew tobacco and drive a Jeep convertible. I spit in bottles, though or, if need be, wait until the vehicle has come to a complete stop.
My uncle knows that he could spit in a bottle or wait until he comes to a stop. He just sees that as taking all of the fun out of it. I think being able to yell "duck!" every time he spits is half the reason he chews tobacco. See also.
67: No, we are on the same timeline., and it seems in agreement on the effect at that time. I'm also not really interested in punishing big tobacco for 40 year old acts, today (although their behaviour over the last 40+ years does pretty much preclude any benefit of the doubt... but that is a separate issue). As I think I mentioned elsewhere, I think the most problematic things they are doing today involve intentionally marketing to a population they are not allowed to sell to. That's just slimy.
However, I was interested in what sort of legal framework actually exists to address this sort of thing (the research angle), since I really don't know. Similar sorts of problems are turning up in pharma today, which might be interesing. If policy is to be decided on the basis of the best available information (yes, hahaha, see other threads) then what do you do about potential beneficiaries of policy decisions trying to skew that information?
I'm *certainly* not interested in subverting the law (however much work I might think it needs) by treating big tobacco seperately; that way lies madness. This isn't because I think they deserve protection per se, but because such a thing will drive a wedge into an already badly broken (imo) system.
If the described sort of behaviour cannot be successfully stopped under current law, then this needs a legislative solution. Of course that doesn't speak to how likely that is to happen....
It's not people (in the last 40 years, at least) saying "Tobacco isn't addictive", it's people saying "It's our position as a company that science has not incontrovertibly established that tobacco is addictive."
I haven't read through the rest of this thread, but I have to respond to this.
The worst thing the tobacco companies have done is undermine the integrity of the scientific process. Funding the Tobacco Institute and running a well organized publicity campaign based on the results that they paid for not only distorted the scientific study of cancer, it provided a template for anyone who wanted to undermine any scientific research whatsoever. Their model has since been followed by creationists, people who deny global warming, and really anyone who wants to introduce more pollutants to the environment.
The tactic is simple: raise the standard of proof far beyond what is normal for science. "Doubt is our product" said the famous Brown and Williamson memo. Creationists and ID people use the same tactic when the push the "evolution is only a theory" line. The thing that people fail to understand is that the standard of proof in science is actually fairly low, lower than it is in law. The standard of proof can be low because all theories are accepted tentatively, unlike legal results.
Thus the big tobacco formula for undermining science: apply legal reasoning to scientific issues, and voila, even the most established pieces of science can crumble.
Also, his favorite Jeep-related prank is to pull up to the entrance window at one of the national parks and ask for admission for 5 when there are only 4 people in the car. When the ticket-seller asks him if he's sure, he says yes and makes a show of counting everyone in the car like she's an idiot and then starts shouting "Bobby! Oh my god! What happened to Bobby?!" and making a big scene like one of the kids in the backseat got thrown out of the car when we hit a bump or went around a curve.
100- You're probably right, considering the amount of liquid one would be spitting. However, hocking a loogie (sp?) straight up is quite an interesting thing to see. The wind catches it and carries it completely clear of the vehicle. It's especially fun to do with people in the backseat, as they will inevitably freak out.
103- That's brilliant. I'm going to have to use that one.
You may, and I should, I don't like this one. Are you hiring?
Thus the big tobacco formula for undermining science: apply legal reasoning to scientific issues, and voila, even the most established pieces of science can crumble.
This just seems silly, though. What crumbled, either in tobacco or in ID? The wrongful behavior of the tobacco companies probably slowed down firm consensus by a few years, but not more than that (IIRC, the solid science started coming out in the early 50's, and consensus was no later than '64.) They tried to create doubt, but weren't terribly successful, and they weren't terribly successful because the scientific process is highly resistant to this sort of bullshit -- reproducible science survives, irreproducible science doesn't.
I'm not saying at all that the tobacco companies aren't run by bad, horrible people who tried to create doubt about the ill effects of smoking while staying within the law, but mostly they did stay within the law, and mostly they didn't successfully create doubt.
Hey, there's a really fun sale at a boutique that's going out of business on 8th street between MacDougall and 5th. A lot of stuff is half off of already discounted prices, and I got a really nice shirts and some necklaces, every item ten dollars.
Gah, I can't believe I'm being cast into the role of defending RJR, but can anybody point out an actual instance of marketing to minors?
Joe Camel? And, while all the tobacco documents are public (there are massive websites) I shouldn't talk about things I've seen professionally even if they aren't confidential because they're publicly available. That said, I'm not arguing this point.
I see Emerson and Soubzriquet are already on this line of argument.
We don't have to reach back 40 years to find examples of big tobacco distorting science. You just have to go back to 1992, when the EPA estimated that second hand smoke killed 3,000 people a year. In 1993 the "Advancement of Sound Science Coalition" appeared out of nowhere and started spreading doubt about this conclusion. They found allies in the Gingrich Congress, who began punishing government agencies like the EPA who released reports with unwelcome conclusions by cutting their funding. The biggest casualty of this reign of terror was the late lamented Office of Technology Assessment, which was disbanded for pointing out that the Star Wars missile defense system wouldn't work.
The best source for the full story is Chris Mooney's The Republican War on Science.
he solid science started coming out in the early 50's, and consensus was no later than '64
But the major tobacco companies were still sowing doubt about the consensus well into at least the '80's if my memory serves -- I was youngish then but seem to recall tobacco PR that suggested we really don't know whether tobacco is all that carcinogenic...
110: I'm not defending their morals, certainly they were trying to shed doubt. I'm saying that there was no particular effect from their attempts -- neither scientists, the public health community, nor consumers in general bought the tobacco companies' claims that tobacco wouldn't hurt you after '64.
I mean, I know the documents exist showing internal discussions of how to get minors to switch from this brand to that - I've read them, since as you say, they're public. But I don't see it ongoing. In fact, I don't see much cigarette marketing of any sort any more.
In ID, public education crumbled. We have a president who says the jury is out on evolution. I would have more confidence in a president who says they jury is out on the heliocentric universe.
111: doesn't follow. There is research on this, actually, I'll see if I can dig it up.
otoh, there is some truth to 114, as I don't see nearly as much anymore. However, one extremely despicable reacitons of US and Canadian governments to falling tobacco prices and farmers wailing was to help set up new/expanded export markets --- and market to children in other countries.
This is, of course, true and examples are easy to find (and it's just as true for big oil, big agriculture, etc.).
However, the second-hand smoke thing is a bad example because, in that case, the EPA's methodology for arriving at that number is major-league distortion of science in its own right.
We've got lots of surveys saying that everyone who smokes knows that cigarettes will kill you, and IMO, they're honest ones.
Now, that doesn't mean that all the lies the tobacco industry told didn't do them any good -- they probably helped people who knew cigarettes cause cancer, and would tell you, if you asked, that cigarettes cause cancer, to feel a little better about buying cigarettes anyway. Nonetheless, that's awful, but it's not (civil) fraud. It's not fraud unless the person you lied to reasonably believes what you said.
Gah, I can't believe I'm being cast into the role of defending RJR, but can anybody point out an actual instance of marketing to minors?
I think you volunteered, Apo.
I think they still do a lot of product placement in movies and the like. This is inclusive of marketing to minors. Joe camel also looks cool to preteens. It's pretty hard to prove anything about organizations as secretive as tobacco companies, and I'm not sure what would count as proof even with more complete information.
I think that you're wrong about second-hand smoke, too.
Tobacco isn't one of my top ten issues, and in fact I lost respect for Sen. Wyden when he made it his big flagship issue. I still find myself wishing that all those people should catch some lingering fatal disease. Their vigorous attempts to confuse the tobacco issue were really pioneering, and set a standard for every other lying malefactor that's come along since.
It's pretty hard to prove anything about organizations as secretive as tobacco companies, and I'm not sure what would count as proof even with more complete information.
Pretty much every document ever generated by a tobacco company is available on the internet. They're awful and evil, but not really so much secretive these days.
122: or they don't put much on paper these days :)
Actually, more concerning, that's a trick that lying corporate bastards learned from tobacco's experience. The lying political bastards already knew it...
... a bit surprising how often it's forgotten, for that matter.
In a sense, sure. But it comes down to this: if we're willing to ignore the basic rules of evidence and law because the client is unsavory, it isn't a big step to "terrorists don't deserve lawyers" and similar logic that has broken out widely.
Joe camel also looks cool to preteens.
Maybe, but beer commercials are funny to them as well without it being considered marketing to them. This seems like an exercise in question-begging.
I think that you're wrong about second-hand smoke, too.
I'm not arguing that second-hand smoke isn't unhealthy, but that the specific EPA report involved ignoring nearly half of the studies they did and cherry-picking data from the ones they kept. I spend my working days editing reports from drug trials for the FDA, and if we turned in anything like that, criminal charges wouldn't be out of the question.
You are very welcome. Thank you for the many referrals.
And if any lurkers out there are from the State Bar Disciplinary Committee, please note that 126 does not relate to a referral fee or a fee made in contemplation of further referrals, but rather, it relates to a gift from one colleague to another as general thanks for professional courtesies in general.
I have trouble thinking what would constitute proof that tobacco companies were or were not marketing to teenagers.
Mostly it's my realization that tobacco smoking wouldn't fade away, as I'd vaguely expected, but would just stabilize at a somewhat lower level, and that steps to find new smokers would continue to be taken.
By and large, what I feel about tobacco companies just merges with my general feeling that the people with deep pockets are almost untouchable. Tobacco is a particularly horrendous example, and they've cut their losses very effectively. I just read that Exxon Valdez settlement is still unpaid. So the structure of the law does not appeal to me terribly.
Haven't caught up on this thread, but a few points:
1. Alcohol isn't as addictive as tobacco.
2. I've been a casual social smoker, on and off, for twenty years. Nonetheless, the shit is addictive, and every time I find myself having ramped beyond casual, as I've been now for about a year, I realize I need to quit again. Which isn't easy. It's a lot easier for me than it seems to be for most smokers, but I'm not buying the argument that "some people smoke casually and just aren't prone to addiction" all that much. I think it's a dangerous game to play.
3. I seem to remember reading that quitting smoking is harder than quitting heroin, in fact.
4. The idea that b/c the packs warn you (and everyone knows) that the shit is deadly and addictive *in any way* balances the amount of research, legal wiggle room, and so on that the tobacco companies can buy is ridiculous. Individual consumers read the packs and go, "yeah, I know, but..." They don't do the hard research, or have access to it, about the mechanics of addiction, the effects of the various things in cigarettes, the legalities of the thing, the distinctions between "addictive" and "not scientifically proven that it's addictive," the subtleties of marketing (including in old movies, etc.), and so on. The tobacco companies have a HUGE advantage, and saying, "well, they print the warnings on the packs" seems to me to be just waving that away.
I shouldn't be arguing about this (I should be diligently serving the Dark Lords of Tobacco and getting this brief written) but let's start with the premise that I'm not defending the primary conduct of the tobacco companies, just talking about lawsuits.
What conduct, particularly, would you like tobacco companies to be found liable for? If you say fraud, you really have to apply different law than you apply to anyone else -- regardless of how tempting or attractive a product is, when you hang a sign on it saying "this will give you cancer," a consumer can't claim to have been defrauded into believing that it wouldn't.
If you say they should be liable for any damage caused by cigarettes, regardless of whether consumers were notified, again, we don't treat any other products like that. If we did, cigarettes would have been very expensive for the last 40 years, as would bicycles and skateboards.
If the problem is the research -- the research done by and for the tobacco companies wasn't generally fraudulent, it was perfectly reasonable science on topics chosen to muddy the waters. While it looks like (and is) bad behavior, I don't see how to prohibit such research in any sane fashion.
Lawsuits have to be based on coherent rules of law. I can't come up with a coherent rule of law that fits within our system under which the tobacco comanies shoud properly be found liable for the damage they've done.
Yeah, but I can't find any means whatsoever within our system by which various other malefactors might ever be held accountable either. There seems to be no way within our system to get the Exxon Valdez people to pay up. There was no way within our system to enforce my sister's divorce settlement.
Lawsuits were a last resort, after electoral politics, common sense, and ordinary decency had all failed miserably. In this and so many other more important cases.
133: Oh, I'm quite willing to defer to your expertise on the law, seriously. I don't get, though, how cigs are comparable to bicycles: they don't do damage merely through accidents; the damage (addiction, and consequent heart/lung damage) are an intrinsict part of the product. It's the same thing I don't get about why gun makers aren't liable for shooting deaths.
Well, going after the people responsible with a shotgun would be an alternative last resort, but you're not suggesting we do that.
The legal system is screwed up in many ways, but it's still an excellent system for fairly deciding disputes between parties who have the minimum wealth necessary for entry into the system. Asking that it start handing out rough, lawless justice because other avenues have failed isn't going to get you any more justice, it's just going to break the legal system for the purposes that it's still good for.
to 135: Because we generally want individual people to make their own decisions about what's too dangerous to do. If they're fairly informed of everything they need to know about the dangerous thing (gun, cigarette) what they do with it is their own business and their own responsibility.
You've been fighting this one for hours, I see, when I checked out long ago, LB. You really have a lot of stamina, and a stubborn belief you can persuade.
Lawyers like me often defend the law as a system, against people's impatience for results. It is not satisfactory to them to say that better means of effecting social change are almost always available. Part of the problem is that those means--legislation, primarily, require politics and compromise, and half measures.
What's that quote from "A Man For All Seasons" one of the great lawyer movies? I don't have a copy of the play, so I'll paraphrase:
His son-in-law, Roper, says something like "I would knock over all the laws to get at the devil!"
And More says: "And after all the laws are down, Thomas, what would stop the wind that would blow then?"
Anyway, that's what we think is at stake in these cases, when we refuse to mess with the standards of negligence, or recklessness, or any other kind of liability. And that's what we think we're doing, even if we hate these guys.
I dreamed about going after my ex-brother-in-law with a shotgun when that was what we were reduced to. I ultimately didn't dare take the risk, in part because he was a smart thug with money who had me outgunned too.
There may be some alternate world where your arguments are persuasive, but Bush doesn't have to obey the law, Cheney doesn't have to obey the law, Exxon doesn't have to obey the law, and the tobacco people have protected themselves very well too, though not quite as well as the others. It's just us guys without the minimum wealth necessary to enter the system who have to obey the law.
My other sister was sterilized by a Dalkon shield, and guess what? The law worked for her, and she got a settlement!
But the judge in the case, Miles Lord, was censured.
"Your company, without warning to women, invaded their bodies by the millions and
caused them injuries by the thousands," Judge Lord said in prepared remarks. "Your company in the
face of overwhelming evidence denies its guilt and continues its monstrous mischief. You have taken
the bottom line as your guiding beacon and the low road as your route. This is corporate irresponsi-
bility at its meanest," Lord declared. (Judge Lambastes Company in Suit on Intrauterine Device, N.Y. T IMES, Mar. 2, 1984, at B16.)
For this action, Judge Lord was threatened with censure and later was found by the Court of Appeals to have conducted himself in a "highly injudicious" manner and to have violated the executives' due process rights. See Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1191-92 (8th Cir. 1984). Lord's reprimand of the executives was consequently stricken from the official record. See id. at 1194.
I have a basic respect for the rule of law in general and realize that respect for the law per se often requires defending bad guys. but people in law should know how strongly people mistrust the actual legal system we live under.
Apostropher: was Frank Zappa a cool, free-market dude like you?
LizardBreath: It's not ethical to opine affirmatively about the culpability of your clients in public. And yes, you will go to Hell for representing tobacco companies. But you may yet go to Heaven if you find another line of work. The law is a big industry. Use your imagination!
I'm sorry to be so hard-nosed. One thing led to another.
These have been my actual opinions, though. The rule of law is a good thing in principle, but our legal system sucks. And since our political system also sucks, and our media, and our supposed opposition party too, I spend most of my time being seriously grumpy.
Apostropher: was Frank Zappa a cool, free-market dude like you?
Way, way more so, actually. I'm anything but a libertarian on economic issues and am not remotely enamored with the invisible hand. On drug issues, though, including tobacco, I hold an extremely libertarian line. But believe me, that's got nothing to do with the free market and everything to do with the government telling me what I can and can't do with my body. As I said upstream, I have no problem with taxing the bejesus out of cigarettes.
Just to clarify: My arguments in this thread are mainly or exclusively against the idea that tobacco manufacturers bear no moral responsibility for the deaths and illnesses caused by their product.
138: "...don't see how to prohibit such research in any sane fashion."
this is basically what I was looking for. It's not my area, so I really don't know what is possible. I think everyone can agree that big tobacco behaved very badly in this regard, but that's not the same as having a plausible legal action. I would like to see effective legislation to curtail this sort of behaviour, but I don't know if that is plausible. It is a difficult issue.
I agree with you about the politics, and about the very, very limited use of legal process as a way for the weak to get redress from the powerful, or the poor from the wealthy. I'm just saying that the justice you want is going to have to come from politics -- while the legal system is limited, it's not worthless, and abandoning the rule of law to puinsh particularly loathsome people will not, in the end, get you the justice you want. It will just break the legal system for the purposes that it is still good for.
A look at IP law tells me that in some respects the law is already broken. Not only have Disney, Microsoft, and the pharmaceutical companies succeeded in getting the law rewritten according to their instructions, but they also use their legal departments to prevent small firms and private individuals from benefitting from these same laws. And they've bribed the Republican Party and half the Democrats into dancing to their tune.
Basically, if the political system is corrupt enough, the law becomes corrupt too. And I see it getting much worse rather than better, with the two new SCOTUS appointments.
Basically, if the political system is corrupt enough, the law becomes corrupt too.
Yup. This is absolutely the case. The legal system can't really do anything for us in the absence of political support - it's always going to be about as good or as bad as the elective branches.
No, I meant in the legal realist sense, specifically as regards the indeterminacy of the law. ( I realize there are boundaries; it was meant as a joke.)
Just in the interests of accuracy (although the spirit of the line is well preserved):
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?
This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then?
The page I pulled that quote from was using it in the context of stripping rights from accused terrorists, where these issues may be clearer. It's just isn't acceptable to strip legal protections from someone, because what they have been accused of is particularly bad.
159 - I agree with you as regards tobacco companies, largely because their product doesn't bother me too much. I'm roughly an Apostropher-libertarian (Apostrotarian?). But I don't think people seeking the change would characterize it as "stripping people of of legal protections" so much as "distinguishing a specific set of circumstances from the general case."
Mmm. What I've been arguing here is that there isn't any legally principled distinction. (If you want to make one -- further regulate or ban the sale of tobacco -- legislate away! But you need to legislate to get there.)
There have been, I think, lots of people who believe that there is not a legally principled argument supporting various controversial decisions in the last few decades. I think the principle complaint conservatives have about "legislating judges" is precisely that the decisions aren't based on principled distinctions. But I think they aren't the only ones. It seems to me that some supporters also aren't comfortable with the arguments in support of the decisions, and so try to come up with better ones. Roe is an example of this, I think.
I think the principle complaint conservatives have about "legislating judges" is precisely that the decisions aren't based on principled distinctions
Well that is one complaint. More generally, a common conservative complaint is that judges should say what the law is, not what it should be. For that reason, Roe v. Wade is a particular sore point for many conservative lawyers not just because of their views on abortion but because--as even many liberal legal scholars have conceded--there simply is little legal basis for Roe. It is classic case of a court deciding what they would like the Constitution to say rather than thinking about what it does say. Even if you like the outcome, Roe should concern you, just as similar cases on the conservative side (recent Eleventh Amendment cases come to mind) should concern conservatives. We all lose if the law is whatever the judge wants it to be.
I think an anti-FS liberal would say that the law doesn't say anything sufficiently determinate to make the hard decisions; the language of the law allows for multiple reasonable readings, and judges end up picking the specific reasonable reading they like best. In a sense, within certain constraints, judges are always saying what the law should be. There's no avoiding it.
Moreover, "reasonable readings" is itself a hard issue; we appear to validate what is reasonable by effectively voting on it - we ask a set of people, "Is this reasonable?" It seems credible to believe that we can, without any bad faith, change the set of such possible readings by changing the set of such voters. For example, if we exclude women from such votes, it wouldn't surprise me to find out that the resulting reasonable readings vary greatly from the reasonable readings that would have existed had women been allowed to vote on the set. Same for minorities, gay people, etc. This is problematic in a country in which the legitimacy of the government rests notionally on the consent of the governed, but which has let different classes of people into the political process at different points in time.
Trivially, the great promise of conservative is stability. And stability is really important. But it's not clear that it's equally important to everyone, or that it is sufficiently important to justify its legitimacy in the face of other failings. After all, as we're finding out, Saddam's great promise was also stability.
the law doesn't say anything sufficiently determinate to make the hard decisions; the language of the law allows for multiple reasonable readings, and judges end up picking the specific reasonable reading they like best.
No doubt true in many circumstances. However, as LizardBreath and I have noted above in connection with the way some courts treat tobacco companies and other unpopular defendants, some judges go far beyond the reasonable reading they like best and instead simply go to the result they like best, making new law (or simply ignoring the law) in order to acheive that result. I do not claim that such conduct is ubiquitious or that conservative judges never do it, but it happens way too much (although it is less common now than it was twenty or thrity years ago).
For example, I would assert that among legal scholars it is accepted that for a variety of institutional and political reasons, the Supreme Court in Brown v. Board of Education decided the case on pretty weak constitutional grounds--in a nutshell, that black children suffered by being deprived of the opportunity to go to school with white children. While the result was generally agreed with, the flawed reasoning continues to affect Equal Protection Clause jurisprudence. In particular, it gave rise to a flurry of court decisions which, following its guide, were essentially law making, not constitution interpreting (one man, one vote is a classic example).
Further, while you will find liberal legal academics who will defend its reasoning, as I noted above, I think it is generally accepted that the reasoning in Roe is seriously flawed, and that it is all about the result, and not about the Constitution. That is why South Dakota can take the (in my mind outrageous) position that it can pass a law which violates established constitutional law in hopes that Roe will be overturned. Every judicial activist should see this as their chickens coming home to roost. If judges can ignore the Constitution, why not legislatures--or Presidents? Aren't we all be better off if we agree that all three branches need to be faithful to the law as it exists--rather than as we would like it to be--even if that means that our preferred policy choices might be harder to implement or maintain?
For example, I would assert that among legal scholars it is accepted that for a variety of institutional and political reasons, the Supreme Court in Brown v. Board of Education decided the case on pretty weak constitutional grounds--in a nutshell, that black children suffered by being deprived of the opportunity to go to school with white children.
My general sense is that this is right. But my further sense is that this is not that unusual - on big cases, judges make decisions that are not well founded, and then academics make their names coming up with better justifications. Or perhaps it is unusual, but only in the sense that big cases are unusual.
some judges go far beyond the reasonable reading they like best
Again, I think "reasonable reading" is a lot harder to validate than you think; "reasonable" is a cultural judgment. I'd bet that my reaction to various justifications for Roe would be more in keeping with your own than LB's reaction to Roe justifications. She has a uterus and we don't, and her perspective is likely to influenced by that. Not wrongly influenced; there's no reason to assume that ours is the default perspective, except that it had been for many, many generations prior to the Roe decision. But I don't think our different understandings of what constitutes a reasonable reading depends on bad faith.
I think an anti-FS liberal would say that the law doesn't say anything sufficiently determinate to make the hard decisions; the language of the law allows for multiple reasonable readings, and judges end up picking the specific reasonable reading they like best. In a sense, within certain constraints, judges are always saying what the law should be.
Where I split from Ideal, is in saying that the level of ambiguity in the law, and thus of the appropriate power of judges, is far greater in issues of constitutional law, particularly dealing with individual rights, than elsewhere. Tobacco cases piss me off because there is clear law that does not get followed by the judges, because of the identity of the defendants.
The cases Ideal is complaining about, on the other hand, seem to me well within the proper scope of judicial interpretations of the constitution. In Roe, for example, the Court had no choice but to decide what constitutional rights a fetus has -- that's not a decision that can be avoided, and the Constitution has no direct textual guidance (although 18th and 19th C legal history is consonant with the Court's implicit holding that the fetus has no such rights.) In the absence of such countervailing legal rights, the proposition that the right to choose one's own reasonable medical care unhindered by laws written on the basis of morality rather than public health or safety, seems absolutely within the scope of the rights implied by the fourth, ninth, and fourteenth amendments.
(I'd also like to distinguish between cases decided (1) because the judge thinks that's what the law should be, and (2) because the judge wants a specific party before them to win or lose, regardless of the law. In cases like (1), which would include Roe, Brown, etc., the judge may be exceeding their powers, but they aren't necessarily -- they're setting up a rule of law applicable to any parties, which is a part of what judges do. In cases like (2), e.g., the tobacco cases, where the judges don't want the law to be different, they just want to hurt the bad people regardless of the law, judges are unambiguously behaving badly.
Re: Brown, I have to agree that the cleanest and best decision would have been to simply overrule Plessy and adopt Harlan's dissent. Warren, essentially a politician, wanted consensus, a unanimous ruling for such a big change.
I learned con law from the iconoclastic Straussian George Anastaplo. This probably renders my everyday thoughts far more eccentric and idealistic than I even realize. Used to have a long list of decisions--Slaughterhouse cases, Erie Railroad, etc. I'd have loved to do over. My younger self wouldn't have been as comforted by Stare Decisis as I seem to be now, and would have been hot for trying. Maybe we'll get to find out soon what that kind of fundamental change might feel like, but I kind of doubt it.
It's tempting, particularly to argue about Baker v. Carr, but I should get some work done.
I would note that with respect to Brown, the worst political aspect of it is often unknown to non-lawyers, and that is the remedy decision, which instead of ordering immediate compliance, told the states (my own words here) to give the plaintiffs' their rights at a pace that was acceptable to the states.
In Roe, for example, the Court had no choice but to decide what constitutional rights a fetus has -- that's not a decision that can be avoided, and the Constitution has no direct textual guidance (although 18th and 19th C legal history is consonant with the Court's implicit holding that the fetus has no such rights.)
There are many who believe that each of the assertions above are wrong. Roe is wrongly decided because the Court took for itself a role that state legislatures had previously held, something it did not have to do. Further, having made some study of 18th and 19th century state and federal constitutional law, I do not believe that that law supports the holding in Roe in the way you state. Finally, because the Federal government is one of limited powers, that the Constitution does not speak to a subject is a matter of some importance, not a reason for a court to go ahead and do what it thinks best.
Oh, I'm not expecting to convince you -- we've had this conversation. But to lay it out slightly more explicitly:
(1) The abortion issue is properly before the Court if it implicates constitutionally protected rights. Whose might those be?
(2) The fetus's? If the fetus is legally a person, then it has all constitutional rights anyone else has, and laws that allow abortion are at the least very, very questionable, while laws prohibiting it are arguably mandatory. It seems impossible to me to constitutionally analyze abortion without taking as a threshold question whether a fetus is legally a person. (If it is not, I see no indication in the constitution of an intent to protect the rights of non-persons.)
(3) So is the fetus a legal person? I am aware of no legal precedent allowing a fetus to sue or to be sued, to own property, or in any other way to be a party to any legal proceeding. (That 'I am not aware' is sincere, by the way, not understatement. Ideal, who is about four times the Con Law scholar that I am, may know of something in this category. But I don't.) That, when added to the lack of mention in the constitution, suggests to me that fetuses have no legally cognizable constitutional rights.
(4) So does the woman involved have a constitutional right here? If you agree with the argument above, that the fetus has no constitutional rights that the Court will protect, the analysis is something like this: does a citizen have a right not to be prohibited from seeking medical treatment where the reason for the prohibition is moral, rather than normal health & safety regulation -- a parallel case would be whether a state in which Jehovah's Witnesses were a majority could ban blood transfusions. I think there's quite a reasonable argument that this (both Roe and the hypothetical JW case) falls easily within the penumbra of the Fourth Amendment, which references the right of the individual to be secure in her person (albeit in a different context) when read in the light of the Ninth and Fourteenth Amendments.
It seems impossible to me to constitutionally analyze abortion without taking as a threshold question whether a fetus is legally a person.
I am aware of no legal precedent allowing a fetus to sue or to be sued, to own property, or in any other way to be a party to any legal proceeding.
You have set up a strawman here. Of course there are no cases holding that a fetus can own property, etc. And if that is the test you set for yourself, of course you meet it. And of course if you frame the argument as one where the only question is balancing the fetus's rights as a person (zero) against a woman's rights, the only answer must be unrestricted access to abortion.
IMHO, your arguments have little to do with the arguments against Roe. The question in Roe was whether, as part of the police power, a state could place limits on a woman's right to abortion. For the entire history of the Republic--until Roe--I believe the answer to that question was yes. Rather than write a long rant, here's a link to a speech by Judge Randolph from the Court of Appeals for the D.C. Circuit regarding another way the issue in could have--and should have--been decided. Warning, it's a long speech.
You have set up a strawman here. Of course there are no cases holding that a fetus can own property, etc. And if that is the test you set for yourself, of course you meet it. And of course if you frame the argument as one where the only question is balancing the fetus's rights as a person (zero) against a woman's rights, the only answer must be unrestricted access to abortion.
I don't think it is a strawman. While I'll talk respectfully about the possibility that a fetus might have moral rights, or interests that should morally be considered (I don't believe it does, but I'll talk respectfully about it), in the Constitutional law context, the question is whether it has legally cognizable rights. I don't see any indication in the Consitution or elsewhere that a fetus has ever been recognized as the sort of thing that has legal rights. You can reasonably argue that the Constitution doesn't protect the right to an abortion, but it's hard for you to argue that that is true on the basis of any legal rights held by the fetus.
At that point, we aren't talking about a balancing of legal rights between the fetus and the woman -- we're talking about whether the woman has a constitutional right to control over her bodily autonomy in the realm of medical treatment sufficient to preclude regulation for reasons other than health and safety. While I don't say that the answer is inescapable, I think the Fourth, Ninth, Fourteenth Amendment argument is a perfectly reasonable one.
Ha! Great story.
Posted by apostropher | Link to this comment | 03-31-06 7:55 AM
People just don't get that the more we disapprove of someone or something, the more upright and admirable we want their lawyers to be, for the impact that has on the case, on the argument, on the client, and how much we can believe what we're hearing.
Posted by I don't pay | Link to this comment | 03-31-06 7:58 AM
She actually forgave me after a bit, or at least continued to talk to me. Apparently her character-judging skills have been sharpened by her thirty-year career as a repo man, and she decided I was okay despite my repulsive vocation.
(She also referred to me, in passing, as a 'pony-lover' later in the evening. I'm hoping that she didn't mean the Catherine-the-Greatesque implications.)
Posted by LizardBreath | Link to this comment | 03-31-06 7:58 AM
It is testimony to LizardBreath's special charm that by the end of the conversation, Jane was agreeing that people should know better than to smoke, that it was their own fault they got cancer and that big tobacco deserved a defense. And then she went on to explain how her job was repossessing cars, but that it wasn't the fault of the owners that their cars got repossessed, it was the banks' fault for forcing people to buy the cars.
But she was a very nice woman. And she donated lots of money to Team Newyorkistan.
However, the big spender of the evening was LizardBreath, who paid astronomical sums to become President of the Team Newyorkistan Back Seat Drivers' Club.
This burning desire to be chief of the back seat drivers was not surprising to those of us who know her.
Posted by Idealist | Link to this comment | 03-31-06 8:00 AM
Ha! indeed.
I ask everybody that, it's one of my questions.
Along with "What do you know about wallabies?"
Posted by Matt Weiner | Link to this comment | 03-31-06 8:03 AM
Lawyers who represent tobacco companies are like bacteria that live in the skin of guinea worms.
Posted by argle | Link to this comment | 03-31-06 8:05 AM
It is testimony to LizardBreath's special charm that by the end of the conversation, Jane was agreeing that people should know better than to smoke, that it was their own fault they got cancer and that big tobacco deserved a defense.
I so did not convince her of anything. I just stood there, laughing helplessly, as the conversation happened to me. She really did seem like a lovely, sweet person, and I can't disagree with her at all about my job.
Posted by LizardBreath | Link to this comment | 03-31-06 8:07 AM
people should know better than to smoke, that it was their own fault they got cancer and that big tobacco deserved a defense
This smoker totally agrees with this assessment.
Posted by apostropher | Link to this comment | 03-31-06 8:09 AM
I ask everybody that, it's one of my questions.
Sounds like she had been reading The Game.
Ack, wait, is that the title? I'm thinking of that book we discussed a month or so back that told hopeful young men how to pick up women in bars by talking about ridiculous stuff.
Never mind, on preview I see Matt has pwn'd me.
Posted by The Modesto Kid | Link to this comment | 03-31-06 8:13 AM
LizardBreath, who paid astronomical sums to become President of the Team Newyorkistan Back Seat Drivers' Club.
Yeah, b/c she has a guilty conscience about all her blood money.
Posted by bitchphd | Link to this comment | 03-31-06 8:14 AM
Meh, the third part doesn't follow from the first two. It is true, along the lines of "even terrorists deserve a defense," but even if it's smokers' fault they get cancer that doesn't mean it's not also tobacco companies' fault.
Posted by Matt Weiner | Link to this comment | 03-31-06 8:15 AM
8: You would.
Posted by bitchphd | Link to this comment | 03-31-06 8:15 AM
I would like to believe big tobacco deserves a defense without believing that people should be held accountable for not knowing, or not properly valuing that it would be better not to smoke, or believing it was therefore their own fault. I could agree if some "not entirely"s would be judiciously inserted here and there.
Posted by I don't pay | Link to this comment | 03-31-06 8:16 AM
11 to 8. And agreeance with 13, I think.
Posted by Matt Weiner | Link to this comment | 03-31-06 8:17 AM
doesn't mean it's not also tobacco companies' fault.
At the risk of letting seriousness break out regarding what is supposed to be a funny description of a funny conversation, "at fault" does not equal "not entitled to a defense." Further, because a company did bad thing "X" does not mean that they should be denied a defense to the charge that they did bad thing "Y"--which they did not do.
Posted by Idealist | Link to this comment | 03-31-06 8:20 AM
Nobody, but nobody, is unaware of the fact that smoking will kill you. They've printed it right on the pack for over forty years, fer cryin' out loud.
Posted by apostropher | Link to this comment | 03-31-06 8:21 AM
I think that the people running big tobacco companies are knowingly doing bad things (that is, selling cancer-causing, addictive products), and should make their money doing something else. I wouldn't be opposed to a nationwide ban on the selling of tobacco. (Ask me to reconcile this with my position on drug legalization -- I can, kind of, but it will make your head hurt.)
That said, applying the same standards of legal responsibility to the tobacco companies as we do to everyone else, I think that the legal claims against them are ill-founded -- generally, if you sell a dangerous product but fully disclose the associated risks (as the tobacco companies have, however unwillingly, since 1964), you aren't liable when someone hurts themselves with it. So someone should be representing them, and the defenses should be successful.
However, it shouldn't be me. I don't like working for bad people. I really need to get out of this job.
Posted by LizardBreath | Link to this comment | 03-31-06 8:23 AM
I thought they recently lied about whether nicotine was addictive.
Posted by Tia | Link to this comment | 03-31-06 8:27 AM
I wouldn't be opposed to a nationwide ban on the selling of tobacco.
You'd just see black-market tobacco, with all the coincident crime that surrounds black market substances. More than squaring this argument against drug legalization, I'd like to see whay a ban on tobacco shouldn't be accompanied by a ban on alcohol, which is also addictive and associated with a host of fatal diseases.
Posted by apostropher | Link to this comment | 03-31-06 8:28 AM
You'd just see black-market tobacco, with all the coincident crime that surrounds black market substances.
My answer to this is that people don't want to smoke furtively, or not as furtively as they would have to if tobacco were illegal. Smoking pot, for example, is an event for most users -- making a private occasion of it, someplace where you won't get caught, doesn't particularly detract from the pleasure of it, so buying it on the black market is okay. Tobacco, on the other hand, is something that people want to use constantly throughout the day -- they want a cigarette every hour or so. Someone kept from using tobacco publicly or openly is, I think, more likely to become a non-smoker than someone kept from using pot publicly or openly is from becoming a non-pot-smoker.
(I'd say that alcohol is on the pot end of the spectrum, where a ban would be useless, and coffee is with tobacco. I love coffee, and drink buckets, and if it were banned I would have a very nasty week of withdrawal and I'd miss it, but I can't see breaking the law to get it. Each cup of coffee isn't worth it -- what I want from coffee is easy access to all the coffee I can drink, when I want it.)
Posted by LizardBreath | Link to this comment | 03-31-06 8:35 AM
"at fault" does not equal "not entitled to a defense.
I already conceded that in 11, I thought, with the point about terrorists. Also agreed about bad thing Y.
Nobody, but nobody, is unaware of the fact that smoking will kill you.
I thought that surveys shows that people still underestimate the risk of smoking. Don't know how much of this is attributable to people being dumb and how much to anything to tobacco companies may have done.
I don't want to be lecturing anyone though, it's important that we be governed by the rule of law (though I think it's a shame that tobacco companies get so much more law than assorted poor people and random citizens the government wants to throw in jail), and for that reason the tobacco companies deserve a defense.
Posted by Matt Weiner | Link to this comment | 03-31-06 8:35 AM
So has anyone seen "Thank you for smoking"?
Posted by silvana | Link to this comment | 03-31-06 8:36 AM
19: I think the standard argument is that it's a lot easier to drink alcohol without getting addicted than it is to smoke without getting addicted. The level of alcohol consumption that most people are at is not high enough to cause health problems, as opposed to the tobacco consumption of most smokers, I guess. I don't really buy this, though, I know many 'casual' smokers (as in, they smoke at bars and such, but not as a regular habit).
Posted by Matt F | Link to this comment | 03-31-06 8:37 AM
people don't want to smoke furtively, or not as furtively as they would have to if tobacco were illegal
I think you might be surprised on that point. My father-in-law has been smoking furtively for a decade, since by my mother-in-law's decree, it is illegal.
Posted by apostropher | Link to this comment | 03-31-06 8:38 AM
I might be wrong; I'm guessing here. But your FIL can smoke openly outside of your MIL's presence; he's not hiding from society, he's hiding from one person. (And she so has him busted. I was raised by smokers, and I'm about the only non-smoker I know who likes the smell, but it's distinctive, and it's strong. If he's smoking, she knows about it.)
Posted by LizardBreath | Link to this comment | 03-31-06 8:40 AM
23: My understanding is that casual smokers are still putting themselves at risk for health problems. OTOH, my understanding is that alcohol companies depend on problem drinkers for a considerable portion of their revenue.
Posted by Matt Weiner | Link to this comment | 03-31-06 8:42 AM
Yes, fil and mil have some sort of dance going here. I like the smell too, I think a lot of non-smokers do, and there are vast cultural connections. Read a book about it called Cigarettes Are Sublime once.
Posted by I don't pay | Link to this comment | 03-31-06 8:48 AM
casual smokers are still putting themselves at risk for health problems
Yep. Y'know, this country is filled to the brim with people who are doing unhealthy things, that they know full well aren't healthy. I believe very strongly in people taking responsibility for their own bad decisions. Class action suits against pharma companies for burying results of poor safety profiles (e.g., Vioxx) are one thing. But smokers know the health risks, have all sorts of smoking cessation aids at their disposal, and choose to smoke anyhow.
Tobacco companies sell a product for which there is a demand. Similarly, there is a demand for grain alcohol and 2500-calorie burgers. The onus of responsibility falls on the consumer, who can't claim that they are anything but informed of the risks. Otherwise, it's a bit like America blaming Colombia for our cocaine habit.
Posted by apostropher | Link to this comment | 03-31-06 8:53 AM
Cigarettes Are Sublime
Great book, by the way.
Posted by apostropher | Link to this comment | 03-31-06 8:58 AM
I can't stand cigarette smoke, but wood smoke is heaven.
I'm puffing on a gnarly twig as I write this.
Posted by Standpipe Bridgeplate | Link to this comment | 03-31-06 9:00 AM
that they know full well aren't healthy... smokers know the health risks
Matt F didn't seem to know that casual smoking wasn't healthy. I'd be surprised if he wasn't representative. Whether or not this ignorance originates with tobacco companies in a way that should make them legally liable, I cannot say.
As far as the health risks of casual smoking, I think it's worth pointing them out even if you're not using that as a club to beat tobacco companies, so people will be better informed about the health risks.
Posted by Matt Weiner | Link to this comment | 03-31-06 9:04 AM
Hey, my ignorance can illustrate a point! It's more useful than I had imagined. I wonder if it can find me an apartment, too.
And now I know. My conscience will yell at me a little more when I have my monthly cigarette.
Posted by Matt F | Link to this comment | 03-31-06 9:15 AM
The risks from a monthly cigarette are pretty much negligible.
Posted by apostropher | Link to this comment | 03-31-06 9:17 AM
Yeah, didn't mean to be too snotty, but hey! A living example!
Posted by Matt Weiner | Link to this comment | 03-31-06 9:17 AM
Ok, one, "big tobacco" is hardly in need of having it's right to a defense, defended. Hence the "big" part. If anything, it's the right to a defense of the individual smoker, with his or her limited inidivudal wealth, that needs defending.
Second of all, the problem isn't that people don't know that smoking is bad for you; it's that they underestimate the highly addictive nature of that "monthly" cigarette. Or, more realistically, the "I only smoke when I drink" or "I only smoke once in a while" approach is hard to maintain over time.
This might be less the case if cigarettes weren't sold in packs of twenty and cartons of 200, and if they weren't marketed as heavily as they are. But it's damn hard to be an occasional smoker.
Posted by bitchphd | Link to this comment | 03-31-06 9:25 AM
Holy fuck. Its. So much for my argument.
Posted by bitchphd | Link to this comment | 03-31-06 9:25 AM
35,36: three out of four ain't bad; you're being too hard on yourself.
Posted by I don't pay | Link to this comment | 03-31-06 9:29 AM
Wait, LB, "she" is a "repo man"? I believe they prefer to be called "repo persons".
Posted by ben wolfson | Link to this comment | 03-31-06 9:31 AM
I would thin "re-persons" would work best; yes, it leaves out any syllable representing possession, but picks up a reverberent connection to "reap." Also suggests something manufactured and inhuman.
Posted by I don't pay | Link to this comment | 03-31-06 9:36 AM
Smoking affects families and survivors too, not just smokers. People do not voluntarily choose to have the breadwinner die of cancer at age 52.
Considering this, as well as the highly addictive nature of cigarettes, their extremely toxic effects, and the way they're effectively marketed to teenagers and subteens, I don't think that "responsibility for one's own actions" quite covers it.
Posted by John Emerson | Link to this comment | 03-31-06 9:42 AM
the right to a defense of the individual smoker
I don't understand what you're saying here. What does the individual smoker need legal defense against?
underestimate the highly addictive nature
Again, the fact that they underestimate it is their own fault. No medical evidence has ever been trumpeted more loudly, except perhaps methods for pregnancy or HIV prevention. "I didn't think that I'd end up addicted to heroin. I was just doing it on the weekends."
Posted by apostropher | Link to this comment | 03-31-06 9:42 AM
The problem I have with Apo's conclusion is that it leaves the situation as bad as it started, merely assigning blame to the smoker and absolving the cigarette companies. If it were up to me I guess I would slap the dying smokers on the wrist while bankrupting the cigarette companies and prosecuting everyone prosecutable.
LB really does need a different job, though. If there's one principle that's secure in the US of A, it's that malefactors of great wealth get adequate legal representation.
Posted by John Emerson | Link to this comment | 03-31-06 9:55 AM
bankrupting the cigarette companies and prosecuting everyone prosecutable
In other words, you would ban the sale of cigarettes?
Posted by apostropher | Link to this comment | 03-31-06 9:59 AM
"Is their own fault" in a strict, semi-libertarian way, sure. But that requires discounting human psychology.
By "defense," I mean, "need their interests defended," obviously. No one is suing smokers for smoking (well, mostly, I don't think). But I think the class-action-lawsuit-bringers are in the right on this one.
Posted by bitchphd | Link to this comment | 03-31-06 10:04 AM
Nobody answered my question about whether the tabacco execs lied about whether they knew about the addictive properties of nicotine. I swear I've seen footage of their congressional testimony over and over. I don't know the law, but if they did, it seems right to me that they be subject to civil suits for fraud, whether or not smokers really knew better anyway, as a deterrant against similarly deceptive behavior about their products by other companies.
Posted by Tia | Link to this comment | 03-31-06 10:07 AM
#44:
It depends on their arguments. For instance, the possibility that cigarettes were developed to make them more addictive is a very valid claim, which shifts my sense of right somewhat. I don't know how that's coming.
Posted by I don't pay | Link to this comment | 03-31-06 10:07 AM
No, I'd just make the cigarette companies' lives a living hell. Banning cigarettes would be counterproductive, but making the creeps squeal would be some compensation.
Posted by John Emerson | Link to this comment | 03-31-06 10:11 AM
in a strict, semi-libertarian way
I don't see it as strict or semi-libertarian. It's just common sense. We all know cigarettes are addictive and deadly. The companies selling them admit as much and put it plainly on every package they sell. Some people still want them, even when fully apprised of the risks, along with a host of other unhealthy products.
the class-action-lawsuit-bringers are in the right on this one
About what, specifically?
Posted by apostropher | Link to this comment | 03-31-06 10:13 AM
45 - The execs did admit it (beginning with Liggett Group), and that was the basis for the tobacco settlement that has so far resulted in $41 billion dollars worth of payments from RJR, Phillip Morris, and Lorillard to the states (with another 6.5 billion due next month).
Posted by apostropher | Link to this comment | 03-31-06 10:25 AM
Are teenagers able to really be aware of the long-term risks? I forget the actual number, but a huge percentage of smokers start before they're 18. The 'rational, informed choice' thing works for adults who are contemplating starting smoking, but if you're already addicted, it's a different story.
Posted by Matt F | Link to this comment | 03-31-06 10:26 AM
49: So they lied, and subsequently fessed up? Or they never lied at all?
Posted by Tia | Link to this comment | 03-31-06 10:27 AM
Nobody answered my question about whether the tabacco execs lied about whether they knew about the addictive properties of nicotine.
This isn't an area in which I've got the solid facts at my fingertips -- that is, I don't have a mental list of everything tobacco execs have said, and I welcome counterexamples. That said, my understanding is that the objectionable remarks you're talking about aren't lies, they're weasels. It's not people (in the last 40 years, at least) saying "Tobacco isn't addictive", it's people saying "It's our position as a company that science has not incontrovertibly established that tobacco is addictive."
Now, I'm not going to defend that sort of thing as a moral thing to say, and I'm not going to say that it's what the same executives would necessarily say at home, speaking out of the public eye. But it's within the realm of honesty that we don't impose civil liaibility for in most contexts -- it's not false, there are real scientists who argue about how best to define addiction and whether tobacco falls inside or outside that definition, it's just slippery and self-serving.
I don't know the law, but if they did, it seems right to me that they be subject to civil suits for fraud, whether or not smokers really knew better anyway, as a deterrant against similarly deceptive behavior about their products by other companies.
An issue that gets elided by laypeople in this context is that to recover damages for fraud from someone who lied to you, you have to show both that they lied, and that their lies caused the bad thing that happened. The 'lies' here are pretty weak -- there was full disclosure on every pack, and the things that get complained about are more like failures of the tobacco companies to say the worst things that could be said about cigarettes with vigor and enthusiasm, despite the fact that all sorts of other people were saying those things.
The causation is even weaker. Apo smokes; my sister the surgeon smokes -- obviously they both know everything bad cigarettes are going to do to you. How can you say that lies told by the tobacco companies caused the health damage they're presumably both suffering? If the tobacco companies had said that cigarettes were addictive, would it have stopped Apo from smoking? I think the answer is clearly 'no'. And there's no good way to separate Apo, who wasn't defrauded, from someone else who may have been, in a class action.
(Talking about this makes me sick. I really despise the tobacco companies, and I hate defending them, but their legal position is solid. Any interpretation of the law that makes them liable would be, to put it technically, really fucked up if you applied it to defendants generally.)
Posted by LizardBreath | Link to this comment | 03-31-06 10:28 AM
50 - But it isn't legal to sell them to minors. The fault there is with the vendor, not the manufacturer.
Look, I know the cigarette companies aren't on the side of the angels (nor McDonalds, Coca-Cola, Seagrams, etc.), but at some point, selling a legal product to willing adults is exactly that.
Posted by apostropher | Link to this comment | 03-31-06 10:29 AM
Seagrams
What do you have against Ginger Ale?
Also, if there was some way to ensure that underage people really didn't smoke, then sure, that's fine. But as it is, very few people have really consented, in a broad sense, to being addicted to cigarettes. This isn't an argument for banning, people do continue to buy cigarettes willingly and they're free to do so. But it's not really true to say that smokers have been properly informed of the risks; the most important time to be informed of them is before you start smoking, and most people aren't really able to understand those risks at the age when they start.
Not really sure what I'm getting at, but I don't think the tobacco companies can honestly say "hey, we warned you", in anything more than a covering-their-asses sense.
Posted by Matt F | Link to this comment | 03-31-06 10:40 AM
54 - I'm not sure how your argument wouldn't apply equally to alcohol.
Posted by apostropher | Link to this comment | 03-31-06 11:03 AM
Apo is saying that the tobacco companies have been warning us about the dangers of tobacco smoking for all these years.
Not exactly. They were forced by law to do so, and after years of delay and lots of kicking and screaming they had no choice but to comply. There was no agency on their part. So now it's a bit odd to see their involuntary and reluctant actions to be used in their defense.
I would be very happy to see some intermediate position between what we have now and total illegalization. When I keep hearing about this "legal product" it's supposed to make me say, "OK, no problem then!", whereas it actually makes me look at the laws. At one time it seemed that we were granddaddying in those already addicted and letting those making their livings in the biz gradually phase it out of it, but actually the tobacco industry is maintaining its power to addict and kill people (who have no one to blame for themselves) with a legal product.
Posted by John Emerson | Link to this comment | 03-31-06 11:03 AM
A long time ago I tried to be fair and rational in debates of this type, but as I gradually came to understand how enormous the contempt is that normal Americans feel toward people who try to be fair and rational, and how great their love was for mean-minded liars, I decided to conform to the norm and get in step with America.
That said, I don't feel as militant about alcohol because 1) I enjoy it, with only moderate harm so far, 2) lots of people enjoy alcohol with moderate or no harm, and 3) both of my parents died of tobacco-related causes, though neither died prematurely and 4) anyone who disagrees with me can go fuck themselves. (Like I said -- I'm no longer a hapless fair and balanced weenie).
Same for cheeseburgers, though I don't really enjoy cheeseburgers.
Posted by John Emerson | Link to this comment | 03-31-06 11:10 AM
John, you'll get no argument from me that the cigarette companies have historically been bad actors. However, they did comply, however unwillingly, and did so forty years ago.
some intermediate position
Like what? I mean, it's all well and good to shake our fingers and holler about how evil the MerchantsOfDeath™ are (and they are), but rhetoric aside, what's the remedy you're proposing that doesn't involve banning the sale of cigarettes?
Posted by apostropher | Link to this comment | 03-31-06 11:11 AM
I don't feel as militant about alcohol because 1) I enjoy it
I think this is the crux of the biscuit here, as it were.
Posted by apostropher | Link to this comment | 03-31-06 11:12 AM
I don't think that an intermediate position is unimaginable. Raising taxes has been moderately successful. Shaming smokers and creating non-smoking areas has been moderately successful. Aggressively enforcing all laws in a punitive, nit-picky way might do some good.
Since the American people have renounced neither retribution nor prohibition, why should anti-smoking people do so? And if the people who stalk, harass, and murder law-abiding abortionists have now gained control the Supreme Court after decades of effort, maybe we should take a lesson from them.
Posted by John Emerson | Link to this comment | 03-31-06 11:21 AM
I don't think that an intermediate position is unimaginable. Raising taxes has been moderately successful. Shaming smokers and creating non-smoking areas has been moderately successful. Aggressively enforcing all laws in a punitive, nit-picky way might do some good.
I'd agree with all of these things, and still think that the tort cases against the tobacco companies are ill-founded. Regulate and tax the hell out of them on a going-forward basis, but don't warp tort law by defining conduct as tortious from the tobacco companies that wouldn't be if the defendant were less loathsome.
Posted by LizardBreath | Link to this comment | 03-31-06 11:26 AM
LB: I understand the companies had excellent legal advice before constructing their statements --- they are scum, but they are very careful scum. On a somewhat related note though, what is the rough situtation with respect to their attempts to subvert the science? As I understand it, it is pretty uncontroversial that they have done this, but is there even any framework for legal recourse?
apo: Perhaps banning the advertizing of cigarettes? I haven't really thought that one through, but it seems that this is the primary vector of `legal, but underhanded' that they currently engage in. I guess you could say the same for alchohol, but it isn't nearly as bad. As I said, haven't thought about it enought to have an opinion about the workability/desireability of this, though....
Posted by soubzriquet | Link to this comment | 03-31-06 11:32 AM
55-alcohol doesn't have the same problem of underage dependency that cigarettes do, I guess would be the difference. Whether this is just an enforcement issue, or something more inherrant, I don't know.
Posted by Matt F | Link to this comment | 03-31-06 11:34 AM
On a somewhat related note though, what is the rough situtation with respect to their attempts to subvert the science? As I understand it, it is pretty uncontroversial that they have done this, but is there even any framework for legal recourse?
What does 'subvert the science' mean? They sponsored a great deal of research in the hopes of either proving that tobacco was harmless and makes your hair shiny, or at least making people think that they were interested in whether tobacco kills people. And they held on to the bitter end claiming that it wasn't absolutely proven that tobacco kills people.
But they didn't have any control over science generally -- the science that lead to, say, the 1964 Surgeon General's report was outside of their control and not subject to their interference. How do you think their actions with respect to research damaged anyone?
Posted by LizardBreath | Link to this comment | 03-31-06 11:37 AM
61 gets it exactly right. I'm fine with them hiking the hell out of cigarette taxes, and I'm sure I'd smoke less as a result. No smoking areas are great; I hate eating within smelling range of cigarette smoke. Hate it! The anti-smoking campaigns aimed at teens seem to have yielded positive results as well. More power to 'em!
I can't speak for everybody, but shame is a very ineffective (and indeed counter-productive) strategy with this smoker. I might just follow you down the street blowing smoke at you. Because, y'know, I don't come to the rest stop and hassle you about the hand jobs.
But the lawsuits are still silly.
Posted by apostropher | Link to this comment | 03-31-06 11:38 AM
LB:
As I understand it, they did this is several ways.
- any time you pay for scientific research and then censor the results, it subverts the process. (big pharma falls into this pattern also). I realise this isn't clear cut (it it was, it should be illegal)
- buying a few ph.d's and having them generate reams of bogus or near-bogus `research' is an effective foot dragging technique
- attempting to discredit research you don't like through non-scientific means
- making in more difficult for others to do research in the area (usually through political means)
I'll dig up references if I have a chance.
Of course, you can't stop other people doing the research, but my impression is that scientific consensus about tobacco effects should have been reached long before it was, and, like political consensus about it the delay was pretty much a direct result of tobacco firms actions (direct and indirect).
Posted by soubzriquet | Link to this comment | 03-31-06 11:46 AM
Of course, you can't stop other people doing the research, but my impression is that scientific consensus about tobacco effects should have been reached long before it was, and, like political consensus about it the delay was pretty much a direct result of tobacco firms actions (direct and indirect).
I'm thinking about this as a lawyer, so when things happened is important to me. I'd say 'scientific consensus' happened at least with the 1964 Surgeon General's report -- probably well before that. If you're arguing that the tobacco companies delayed that moment, you're probably right that they tried to, and probably right that they did, somewhat. But given stautes of limitations and so forth, any bad acts that happened more than 40 years ago really shouldn't be relevant in a court of law today.
Are you saying that scientific consensus was later than that?
Posted by LizardBreath | Link to this comment | 03-31-06 11:49 AM
Tobacco companies pioneered the "flood of confusion" tactic used to make it seem that there are two sides to a story when there really isn't. This is the Rove-Dubya method too, and should be added to the indictment.
This is one of the things that has made it more or less impossible for me to talk to people about politics in a civil manner. You have to keep knocking down these phony planted stories and quibbles and misrepresentations and anecdotes over and over again, and eventually you lose your respect for the people you're trying to talk to and decide to enjoy yourself in your pitiful, hateful way, and just vent.
Posted by John Emerson | Link to this comment | 03-31-06 11:57 AM
Like, LizardBreath, I look at this as a lawyer and as someone who values the rule of law. It might make you feel good to see a person or industry you have decided is "evil" be denied the same legal rights everyone else gets, but we all lose when it happens. Part of the disconnect here may be that you may not realize the extent to which some judges simply ignore the law (or at least bend it in very strange shapes) to punish people or industries they have decided are evil. In some areas, such as civil racketeering law, there are two clear strands of law, one applied to most defendants and one applied to defendants judges do not like. Same facts, different result--the only difference is the defendant.
Posted by Idealist | Link to this comment | 03-31-06 12:09 PM
re: 68 and 69
I wrote 69 before seeing 68. The "you" in 69 is general, it was not directed specifically at 68.
Posted by Idealist | Link to this comment | 03-31-06 12:11 PM
oh bah. Cigarettes are of course very unhealthy, and it's much better not to smoke, but exaggerating the argument just makes the arguer look unbalanced and easier to ignore.
I was a casual smoker for 6 years: at first Lucky Strikes (woo hoo) and then Nat Shermans. At first only in bars, and then later I used them to get me in the right mode for writing - so you'd think I'd be a prime candidate for addiction. And yet no - I never got addicted, or felt like I *needed* a cigarette - it must not be in my chemistry. Nicotine addiction doesn't ineluctably happen to everyone - it's not heroin.
I stopped smoking 5 years ago, for budgetary and boyfriendly reasons. It was really easy. No hullaballo or great waves of missing it; just stopped. Never started again. Calling it "quitting" makes it sound like a bigger deal than it was. Which isn't to deny it isn't hard for some people, but just to say the exaggerations about the evils of smoking are misleading. And probably counterproductive.
as for shaming smokers, esp. if they are smoking outdoors: that just makes the shamer a little bit nastier as a human being, and the world a little bit more of a crappy place.
Posted by mmf! | Link to this comment | 03-31-06 12:13 PM
69 -- your first comma makes you sound like a Valley girl.
Posted by The Modesto Kid | Link to this comment | 03-31-06 12:14 PM
It we be nice if we did get the same rights that tobacco gets. In theory we do get those rights, but in practice this is only if we can afford the lawyers.
Worrying about possible unfairness to Big Tobacco in some hypothetical circumstance when its rights are actually violated isn't at the top of my civil rights worry list. I think more about my non-hypothetical sister who was actually cheated out of the greater part of her divorce settlement because she couldn't afford the legal fees. This is a personal anecdote, but I could dig up many much more horrific examples with a moderate amount of effort.
Posted by John Emerson | Link to this comment | 03-31-06 12:15 PM
your first comma makes you sound like a Valley girl
Totally.
Posted by Idealist | Link to this comment | 03-31-06 12:17 PM
I'll bet I'm in the minority here, but I want to throw this out there:
I'm a casual smoker, when I drink, etc. I used to smoke often, but I was an athlete in high school and so I switched to...chewing tobacco!
I use chewing tobacco (dip) on a regular basis. I am well aware of the health risks.
Chewing tobacco is widely used (in the South, at least) but rarely talked about because it is widely derided by those who don't use it.
In fact, it may be gaining popularity by virtue of "non-smoking areas" where dipping is perfectly acceptable because there are no effects to anyone other than the user.
Posted by Jon McGee | Link to this comment | 03-31-06 12:25 PM
Way back when cramming my legal 101 for non lawyers, I was confronted with Denning on Equtable Estoppel.
Seems to me there might be an application of that here?
Posted by Austro | Link to this comment | 03-31-06 12:25 PM
possible unfairness to Big Tobacco
That isn't my concern either. I don't care about the fortunes of Phillip Morris or RJR, what with owning stock in neither, and I'm not out marching in their defense. Fuck 'em. I still think the lawsuits are profoundly silly and without legal merit, and I hate that 1) every stupid thing in this country ends up in the court system, and 2) so few people are willing to accept responsibility for their own behavior. Those aren't incompatible stances.
Posted by apostropher | Link to this comment | 03-31-06 12:32 PM
re: 75
Good points all.
However, having worked around people who dip or chew, I would make the aesthetic point that the multiple random cups of tobacco spit are less than pleasant, particularly if you mistake one of them for your cup of soda.
Posted by Idealist | Link to this comment | 03-31-06 12:37 PM
It we be nice if we did get the same rights that tobacco gets. In theory we do get those rights, but in practice this is only if we can afford the lawyers.
I'm not so much worried about the rights of big tobacco, I'm worried about the structure of the law. If big tobacco's rights are violated casually (Or, actually, I don't even want to talk about it in terms of rights -- if big tobacco is found liable for conduct that would not, from another actor, be considered tortious) then the cases in which this happens are on the books, and can be used as legal support for screwy cases against the next defendant. It's bad for the functioning of the legal system.
I think more about my non-hypothetical sister who was actually cheated out of the greater part of her divorce settlement because she couldn't afford the legal fees. This is a personal anecdote, but I could dig up many much more horrific examples with a moderate amount of effort.
This, I think, is a huge problem, but a different one. I am horrified by (and was fairly unaware of, before I started practicing) the degree to which the courthouse doors are shut to people who aren't wealthy. There are some circumstances where poor and middle-class people can use the courts for redress (class actions, cases that make sense for contingency fees) but largely, lawyers are things that only the very wealthy can afford.
Posted by LizardBreath | Link to this comment | 03-31-06 12:37 PM
79 gets it right on both counts.
Posted by Idealist | Link to this comment | 03-31-06 12:39 PM
78: That may be the most repulsive thing I've ever read.
and 72: He's from California -- of course he sounds like a Valley Girl.
Posted by LizardBreath | Link to this comment | 03-31-06 12:39 PM
I have to agree re #78; all would-be gay feelings towards Idealist are dead.
Posted by SomeCallMeTim | Link to this comment | 03-31-06 12:41 PM
78- The rule in my apartment (roommate and friends who also dip) is that all 'spitters' must have caps. So we save empty water bottles and use those. They are not easily mistaken for something different and are easy to dispose of.
I realize brown, thick liquid in a water bottle looks particularly gross, but it's better than spills or inadvertant consumption.
81- This is why people who don't dip hate it so much. It is a dirty habit, much dirtier than smoking, just by nature of having to spit out the juice.
Posted by Jon McGee | Link to this comment | 03-31-06 12:43 PM
82: Why? He didn't do anything gross, just complained about grossness having been inflicted upon him.
Posted by LizardBreath | Link to this comment | 03-31-06 12:44 PM
The implication was that he drank from a spitoon, however accidently. Lips that touched tobacco swill will not touch mine.
Posted by SomeCallMeTim | Link to this comment | 03-31-06 12:47 PM
You're a fastidious man, SCMT. Ideal, I think you're going to have to cancel the dinner reservations.
Posted by LizardBreath | Link to this comment | 03-31-06 12:48 PM
That may be the most repulsive thing I've ever read.
Well, at least there is no secondhand smoke (an important consideration when you are working in close quarters). And most people try to be considerate.
Posted by Idealist | Link to this comment | 03-31-06 12:48 PM
Apostropher, I don't particularly want to shame you for smoking, and I have no particular stake in the lawsuits either. Like LB, I favor the rule of law. I do have a stake in the idea that tobacco companies are absolved of moral responsibility for what they do if smokers know what they're getting into.
And I want to pick on this:
But it isn't legal to sell them to minors. The fault there is with the vendor, not the manufacturer.
This is like saying "The Bush Administration knows that torture is illegal [well, maybe they don't]. The fault is with the grunts who do it, not with the higher-ups who said that the Geneva Conventions didn't apply, and who demanded more information, and who told the grunts to use aggressive tactics, etc. etc. etc."
The tobacco companies, I'm pretty sure, know full well that kids are smoking. And they count on the revenue from the smokers who get addicted as kids. And they market to those kids. And they know that vendors are going to have an incentive to sell to kids, and little incentive not to.
Conclusion: It looks like the tobacco companies are pushing cigarettes to kids. Passing out a bunch of signs saying "Don't sell cigarettes to kids" doesn't get them off the hook.
(At least, it doesn't follow from "selling cigarettes to kids is illegal" that only the vendor bears moral responsibility when that happens.)
Posted by Matt Weiner | Link to this comment | 03-31-06 12:49 PM
re: 86
Your loss, SCMT.
Posted by Idealist | Link to this comment | 03-31-06 12:50 PM
no secondhand smoke
The drawback is the secondhand phlegm.
Posted by The Modesto Kid | Link to this comment | 03-31-06 12:54 PM
Apostropher, I don't particularly want to shame you for smoking
Okay then, I'll stop hassling you about the rest stop hand jobs.
Posted by apostropher | Link to this comment | 03-31-06 12:55 PM
Well, the structure of the law works very well for big tobacco and pretty much anyone with deep pockets, and not for a lot of other people.
In this and other cases when lawsuits are brought, often it's a last-ditch effort by people who have found that the electoral process, the government regulation process, big chunks of the media, and criminal justice have all een pretty much neutralized by the guys with the deep pockets.
Filing a lawsuit is pretty much the only thing you can do unilaterally when your elected representatives have been bought.
Posted by John Emerson | Link to this comment | 03-31-06 1:13 PM
Well, the structure of the law works very well for big tobacco and pretty much anyone with deep pockets, and not for a lot of other people.
But this is hardly unique to the law, right?
Posted by The Modesto Kid | Link to this comment | 03-31-06 1:15 PM
My redneck uncle in Montana chews tobacco and drives a Jeep convertible. There is a big incentive to call shotgun when going on roadtrips with him.
Posted by Becks | Link to this comment | 03-31-06 1:19 PM
94 -- if you do not get shotgun you could still sit on the passenger side of the back seat, right?
Posted by The Modesto Kid | Link to this comment | 03-31-06 1:21 PM
You realize, that if you've ever sat in the back seat, you and SCMT will never find love together.
Posted by LizardBreath | Link to this comment | 03-31-06 1:22 PM
94- I'm not from Montana but I chew tobacco and drive a Jeep convertible. I spit in bottles, though or, if need be, wait until the vehicle has come to a complete stop.
Posted by Jon McGee | Link to this comment | 03-31-06 1:29 PM
My uncle knows that he could spit in a bottle or wait until he comes to a stop. He just sees that as taking all of the fun out of it. I think being able to yell "duck!" every time he spits is half the reason he chews tobacco. See also.
Posted by Becks | Link to this comment | 03-31-06 1:46 PM
I am in awe of your uncle.
Just for clarity's sake, does he spit up in the air? or out the window?
Posted by Jon McGee | Link to this comment | 03-31-06 2:01 PM
Seems like "up in the air" would be dangerous for the spitter more than to his carmates.
Posted by The Modesto Kid | Link to this comment | 03-31-06 2:04 PM
67: No, we are on the same timeline., and it seems in agreement on the effect at that time. I'm also not really interested in punishing big tobacco for 40 year old acts, today (although their behaviour over the last 40+ years does pretty much preclude any benefit of the doubt... but that is a separate issue). As I think I mentioned elsewhere, I think the most problematic things they are doing today involve intentionally marketing to a population they are not allowed to sell to. That's just slimy.
However, I was interested in what sort of legal framework actually exists to address this sort of thing (the research angle), since I really don't know. Similar sorts of problems are turning up in pharma today, which might be interesing. If policy is to be decided on the basis of the best available information (yes, hahaha, see other threads) then what do you do about potential beneficiaries of policy decisions trying to skew that information?
I'm *certainly* not interested in subverting the law (however much work I might think it needs) by treating big tobacco seperately; that way lies madness. This isn't because I think they deserve protection per se, but because such a thing will drive a wedge into an already badly broken (imo) system.
If the described sort of behaviour cannot be successfully stopped under current law, then this needs a legislative solution. Of course that doesn't speak to how likely that is to happen....
Posted by soubzriquet | Link to this comment | 03-31-06 2:12 PM
It's not people (in the last 40 years, at least) saying "Tobacco isn't addictive", it's people saying "It's our position as a company that science has not incontrovertibly established that tobacco is addictive."
I haven't read through the rest of this thread, but I have to respond to this.
The worst thing the tobacco companies have done is undermine the integrity of the scientific process. Funding the Tobacco Institute and running a well organized publicity campaign based on the results that they paid for not only distorted the scientific study of cancer, it provided a template for anyone who wanted to undermine any scientific research whatsoever. Their model has since been followed by creationists, people who deny global warming, and really anyone who wants to introduce more pollutants to the environment.
The tactic is simple: raise the standard of proof far beyond what is normal for science. "Doubt is our product" said the famous Brown and Williamson memo. Creationists and ID people use the same tactic when the push the "evolution is only a theory" line. The thing that people fail to understand is that the standard of proof in science is actually fairly low, lower than it is in law. The standard of proof can be low because all theories are accepted tentatively, unlike legal results.
Thus the big tobacco formula for undermining science: apply legal reasoning to scientific issues, and voila, even the most established pieces of science can crumble.
LB, if I may, I think you should get another job.
Posted by rob helpy-chalk | Link to this comment | 03-31-06 2:14 PM
99 - He spits out the window.
Also, his favorite Jeep-related prank is to pull up to the entrance window at one of the national parks and ask for admission for 5 when there are only 4 people in the car. When the ticket-seller asks him if he's sure, he says yes and makes a show of counting everyone in the car like she's an idiot and then starts shouting "Bobby! Oh my god! What happened to Bobby?!" and making a big scene like one of the kids in the backseat got thrown out of the car when we hit a bump or went around a curve.
Posted by Becks | Link to this comment | 03-31-06 2:15 PM
things they are doing today involve intentionally marketing to a population they are not allowed to sell to
Gah, I can't believe I'm being cast into the role of defending RJR, but can anybody point out an actual instance of marketing to minors?
Posted by apostropher | Link to this comment | 03-31-06 2:21 PM
100- You're probably right, considering the amount of liquid one would be spitting. However, hocking a loogie (sp?) straight up is quite an interesting thing to see. The wind catches it and carries it completely clear of the vehicle. It's especially fun to do with people in the backseat, as they will inevitably freak out.
103- That's brilliant. I'm going to have to use that one.
Posted by Jon McGee | Link to this comment | 03-31-06 2:22 PM
LB, if I may, I think you should get another job.
You may, and I should, I don't like this one. Are you hiring?
Thus the big tobacco formula for undermining science: apply legal reasoning to scientific issues, and voila, even the most established pieces of science can crumble.
This just seems silly, though. What crumbled, either in tobacco or in ID? The wrongful behavior of the tobacco companies probably slowed down firm consensus by a few years, but not more than that (IIRC, the solid science started coming out in the early 50's, and consensus was no later than '64.) They tried to create doubt, but weren't terribly successful, and they weren't terribly successful because the scientific process is highly resistant to this sort of bullshit -- reproducible science survives, irreproducible science doesn't.
I'm not saying at all that the tobacco companies aren't run by bad, horrible people who tried to create doubt about the ill effects of smoking while staying within the law, but mostly they did stay within the law, and mostly they didn't successfully create doubt.
Posted by LizardBreath | Link to this comment | 03-31-06 2:22 PM
Hey, there's a really fun sale at a boutique that's going out of business on 8th street between MacDougall and 5th. A lot of stuff is half off of already discounted prices, and I got a really nice shirts and some necklaces, every item ten dollars.
Posted by Tia | Link to this comment | 03-31-06 2:23 PM
Gah, I can't believe I'm being cast into the role of defending RJR, but can anybody point out an actual instance of marketing to minors?
Joe Camel? And, while all the tobacco documents are public (there are massive websites) I shouldn't talk about things I've seen professionally even if they aren't confidential because they're publicly available. That said, I'm not arguing this point.
Posted by LizardBreath | Link to this comment | 03-31-06 2:28 PM
I see Emerson and Soubzriquet are already on this line of argument.
We don't have to reach back 40 years to find examples of big tobacco distorting science. You just have to go back to 1992, when the EPA estimated that second hand smoke killed 3,000 people a year. In 1993 the "Advancement of Sound Science Coalition" appeared out of nowhere and started spreading doubt about this conclusion. They found allies in the Gingrich Congress, who began punishing government agencies like the EPA who released reports with unwelcome conclusions by cutting their funding. The biggest casualty of this reign of terror was the late lamented Office of Technology Assessment, which was disbanded for pointing out that the Star Wars missile defense system wouldn't work.
The best source for the full story is Chris Mooney's The Republican War on Science.
Posted by rob helpy-chalk | Link to this comment | 03-31-06 2:30 PM
he solid science started coming out in the early 50's, and consensus was no later than '64
But the major tobacco companies were still sowing doubt about the consensus well into at least the '80's if my memory serves -- I was youngish then but seem to recall tobacco PR that suggested we really don't know whether tobacco is all that carcinogenic...
Posted by The Modesto Kid | Link to this comment | 03-31-06 2:30 PM
Joe Camel?
Only if we stipulate that using Snoopy was MetLife's sneaky way of marketing term life insurance to kids.
Posted by apostropher | Link to this comment | 03-31-06 2:32 PM
(after reading 109) -- Or maybe I am mixing up "smoking" with "second hand smoke" -- probably the PR I am recalling was with regards to the latter.
Posted by The Modesto Kid | Link to this comment | 03-31-06 2:33 PM
110: I'm not defending their morals, certainly they were trying to shed doubt. I'm saying that there was no particular effect from their attempts -- neither scientists, the public health community, nor consumers in general bought the tobacco companies' claims that tobacco wouldn't hurt you after '64.
Posted by LizardBreath | Link to this comment | 03-31-06 2:33 PM
I mean, I know the documents exist showing internal discussions of how to get minors to switch from this brand to that - I've read them, since as you say, they're public. But I don't see it ongoing. In fact, I don't see much cigarette marketing of any sort any more.
Posted by apostropher | Link to this comment | 03-31-06 2:34 PM
neither scientists, the public health community, nor consumers in general bought the tobacco companies' claims
I think it would be way easier to produce evidence backing up parts I and II of this assertion than part III.
Posted by The Modesto Kid | Link to this comment | 03-31-06 2:37 PM
What crumbled, either in tobacco or in ID?
In ID, public education crumbled. We have a president who says the jury is out on evolution. I would have more confidence in a president who says they jury is out on the heliocentric universe.
Posted by rob helpy-chalk | Link to this comment | 03-31-06 2:38 PM
111: doesn't follow. There is research on this, actually, I'll see if I can dig it up.
otoh, there is some truth to 114, as I don't see nearly as much anymore. However, one extremely despicable reacitons of US and Canadian governments to falling tobacco prices and farmers wailing was to help set up new/expanded export markets --- and market to children in other countries.
Posted by soubzriquet | Link to this comment | 03-31-06 2:41 PM
examples of big tobacco distorting science
This is, of course, true and examples are easy to find (and it's just as true for big oil, big agriculture, etc.).
However, the second-hand smoke thing is a bad example because, in that case, the EPA's methodology for arriving at that number is major-league distortion of science in its own right.
Posted by apostropher | Link to this comment | 03-31-06 2:43 PM
We've got lots of surveys saying that everyone who smokes knows that cigarettes will kill you, and IMO, they're honest ones.
Now, that doesn't mean that all the lies the tobacco industry told didn't do them any good -- they probably helped people who knew cigarettes cause cancer, and would tell you, if you asked, that cigarettes cause cancer, to feel a little better about buying cigarettes anyway. Nonetheless, that's awful, but it's not (civil) fraud. It's not fraud unless the person you lied to reasonably believes what you said.
Posted by LizardBreath | Link to this comment | 03-31-06 2:44 PM
This is, of course, true and examples are easy to find (and it's just as true for big oil, big agriculture, etc.).
Of course. In fact, The Bigs (Oil. Tobacco, and Food) often use the same stooges. Fred Singer, for instance.
Posted by rob helpy-chalk | Link to this comment | 03-31-06 2:47 PM
Gah, I can't believe I'm being cast into the role of defending RJR, but can anybody point out an actual instance of marketing to minors?
I think you volunteered, Apo.
I think they still do a lot of product placement in movies and the like. This is inclusive of marketing to minors. Joe camel also looks cool to preteens. It's pretty hard to prove anything about organizations as secretive as tobacco companies, and I'm not sure what would count as proof even with more complete information.
I think that you're wrong about second-hand smoke, too.
Tobacco isn't one of my top ten issues, and in fact I lost respect for Sen. Wyden when he made it his big flagship issue. I still find myself wishing that all those people should catch some lingering fatal disease. Their vigorous attempts to confuse the tobacco issue were really pioneering, and set a standard for every other lying malefactor that's come along since.
Posted by John Emerson | Link to this comment | 03-31-06 3:02 PM
It's pretty hard to prove anything about organizations as secretive as tobacco companies, and I'm not sure what would count as proof even with more complete information.
Pretty much every document ever generated by a tobacco company is available on the internet. They're awful and evil, but not really so much secretive these days.
Posted by LizardBreath | Link to this comment | 03-31-06 3:05 PM
122: or they don't put much on paper these days :)
Actually, more concerning, that's a trick that lying corporate bastards learned from tobacco's experience. The lying political bastards already knew it...
... a bit surprising how often it's forgotten, for that matter.
Posted by soubzriquet | Link to this comment | 03-31-06 3:10 PM
And I should stop arguing about this because I'm becoming ill. 61 pretty much says everything I have to say.
Posted by LizardBreath | Link to this comment | 03-31-06 3:12 PM
I'll stop hassling you about the rest stop hand jobs.
FINALLY. No means no, apostropher.
Posted by Matt Weiner | Link to this comment | 03-31-06 3:13 PM
And back to the intial post, while Ideal has not bought me a pony, he has bought me a very nice bottle of whiskey for referring a client to him.
Thank you kindly, sir.
Posted by LizardBreath | Link to this comment | 03-31-06 3:43 PM
I think you volunteered, Apo.
In a sense, sure. But it comes down to this: if we're willing to ignore the basic rules of evidence and law because the client is unsavory, it isn't a big step to "terrorists don't deserve lawyers" and similar logic that has broken out widely.
Joe camel also looks cool to preteens.
Maybe, but beer commercials are funny to them as well without it being considered marketing to them. This seems like an exercise in question-begging.
I think that you're wrong about second-hand smoke, too.
I'm not arguing that second-hand smoke isn't unhealthy, but that the specific EPA report involved ignoring nearly half of the studies they did and cherry-picking data from the ones they kept. I spend my working days editing reports from drug trials for the FDA, and if we turned in anything like that, criminal charges wouldn't be out of the question.
Posted by apostropher | Link to this comment | 03-31-06 4:08 PM
re: 126
You are very welcome. Thank you for the many referrals.
And if any lurkers out there are from the State Bar Disciplinary Committee, please note that 126 does not relate to a referral fee or a fee made in contemplation of further referrals, but rather, it relates to a gift from one colleague to another as general thanks for professional courtesies in general.
Further affiant sayeth naught.
Posted by Anonymous | Link to this comment | 03-31-06 4:20 PM
I have trouble thinking what would constitute proof that tobacco companies were or were not marketing to teenagers.
Mostly it's my realization that tobacco smoking wouldn't fade away, as I'd vaguely expected, but would just stabilize at a somewhat lower level, and that steps to find new smokers would continue to be taken.
By and large, what I feel about tobacco companies just merges with my general feeling that the people with deep pockets are almost untouchable. Tobacco is a particularly horrendous example, and they've cut their losses very effectively. I just read that Exxon Valdez settlement is still unpaid. So the structure of the law does not appeal to me terribly.
Posted by John Emerson | Link to this comment | 03-31-06 4:23 PM
people with deep pockets are almost untouchable
Total agreement.
Posted by apostropher | Link to this comment | 03-31-06 4:38 PM
Likewise.
Posted by LizardBreath | Link to this comment | 03-31-06 4:43 PM
Haven't caught up on this thread, but a few points:
1. Alcohol isn't as addictive as tobacco.
2. I've been a casual social smoker, on and off, for twenty years. Nonetheless, the shit is addictive, and every time I find myself having ramped beyond casual, as I've been now for about a year, I realize I need to quit again. Which isn't easy. It's a lot easier for me than it seems to be for most smokers, but I'm not buying the argument that "some people smoke casually and just aren't prone to addiction" all that much. I think it's a dangerous game to play.
3. I seem to remember reading that quitting smoking is harder than quitting heroin, in fact.
4. The idea that b/c the packs warn you (and everyone knows) that the shit is deadly and addictive *in any way* balances the amount of research, legal wiggle room, and so on that the tobacco companies can buy is ridiculous. Individual consumers read the packs and go, "yeah, I know, but..." They don't do the hard research, or have access to it, about the mechanics of addiction, the effects of the various things in cigarettes, the legalities of the thing, the distinctions between "addictive" and "not scientifically proven that it's addictive," the subtleties of marketing (including in old movies, etc.), and so on. The tobacco companies have a HUGE advantage, and saying, "well, they print the warnings on the packs" seems to me to be just waving that away.
Posted by bitchphd | Link to this comment | 03-31-06 7:12 PM
I shouldn't be arguing about this (I should be diligently serving the Dark Lords of Tobacco and getting this brief written) but let's start with the premise that I'm not defending the primary conduct of the tobacco companies, just talking about lawsuits.
What conduct, particularly, would you like tobacco companies to be found liable for? If you say fraud, you really have to apply different law than you apply to anyone else -- regardless of how tempting or attractive a product is, when you hang a sign on it saying "this will give you cancer," a consumer can't claim to have been defrauded into believing that it wouldn't.
If you say they should be liable for any damage caused by cigarettes, regardless of whether consumers were notified, again, we don't treat any other products like that. If we did, cigarettes would have been very expensive for the last 40 years, as would bicycles and skateboards.
If the problem is the research -- the research done by and for the tobacco companies wasn't generally fraudulent, it was perfectly reasonable science on topics chosen to muddy the waters. While it looks like (and is) bad behavior, I don't see how to prohibit such research in any sane fashion.
Lawsuits have to be based on coherent rules of law. I can't come up with a coherent rule of law that fits within our system under which the tobacco comanies shoud properly be found liable for the damage they've done.
Posted by LizardBreath | Link to this comment | 03-31-06 7:36 PM
Yeah, but I can't find any means whatsoever within our system by which various other malefactors might ever be held accountable either. There seems to be no way within our system to get the Exxon Valdez people to pay up. There was no way within our system to enforce my sister's divorce settlement.
Lawsuits were a last resort, after electoral politics, common sense, and ordinary decency had all failed miserably. In this and so many other more important cases.
Posted by John Emerson | Link to this comment | 03-31-06 8:14 PM
133: Oh, I'm quite willing to defer to your expertise on the law, seriously. I don't get, though, how cigs are comparable to bicycles: they don't do damage merely through accidents; the damage (addiction, and consequent heart/lung damage) are an intrinsict part of the product. It's the same thing I don't get about why gun makers aren't liable for shooting deaths.
Posted by bitchphd | Link to this comment | 03-31-06 8:18 PM
Well, going after the people responsible with a shotgun would be an alternative last resort, but you're not suggesting we do that.
The legal system is screwed up in many ways, but it's still an excellent system for fairly deciding disputes between parties who have the minimum wealth necessary for entry into the system. Asking that it start handing out rough, lawless justice because other avenues have failed isn't going to get you any more justice, it's just going to break the legal system for the purposes that it's still good for.
Posted by LizardBreath | Link to this comment | 03-31-06 8:21 PM
136 to 134
to 135: Because we generally want individual people to make their own decisions about what's too dangerous to do. If they're fairly informed of everything they need to know about the dangerous thing (gun, cigarette) what they do with it is their own business and their own responsibility.
Posted by LizardBreath | Link to this comment | 03-31-06 8:25 PM
You've been fighting this one for hours, I see, when I checked out long ago, LB. You really have a lot of stamina, and a stubborn belief you can persuade.
Lawyers like me often defend the law as a system, against people's impatience for results. It is not satisfactory to them to say that better means of effecting social change are almost always available. Part of the problem is that those means--legislation, primarily, require politics and compromise, and half measures.
What's that quote from "A Man For All Seasons" one of the great lawyer movies? I don't have a copy of the play, so I'll paraphrase:
His son-in-law, Roper, says something like "I would knock over all the laws to get at the devil!"
And More says: "And after all the laws are down, Thomas, what would stop the wind that would blow then?"
Anyway, that's what we think is at stake in these cases, when we refuse to mess with the standards of negligence, or recklessness, or any other kind of liability. And that's what we think we're doing, even if we hate these guys.
Posted by I don't pay | Link to this comment | 03-31-06 8:43 PM
I dreamed about going after my ex-brother-in-law with a shotgun when that was what we were reduced to. I ultimately didn't dare take the risk, in part because he was a smart thug with money who had me outgunned too.
There may be some alternate world where your arguments are persuasive, but Bush doesn't have to obey the law, Cheney doesn't have to obey the law, Exxon doesn't have to obey the law, and the tobacco people have protected themselves very well too, though not quite as well as the others. It's just us guys without the minimum wealth necessary to enter the system who have to obey the law.
My other sister was sterilized by a Dalkon shield, and guess what? The law worked for her, and she got a settlement!
But the judge in the case, Miles Lord, was censured.
"Your company, without warning to women, invaded their bodies by the millions and
caused them injuries by the thousands," Judge Lord said in prepared remarks. "Your company in the
face of overwhelming evidence denies its guilt and continues its monstrous mischief. You have taken
the bottom line as your guiding beacon and the low road as your route. This is corporate irresponsi-
bility at its meanest," Lord declared. (Judge Lambastes Company in Suit on Intrauterine Device, N.Y. T IMES, Mar. 2, 1984, at B16.)
For this action, Judge Lord was threatened with censure and later was found by the Court of Appeals to have conducted himself in a "highly injudicious" manner and to have violated the executives' due process rights. See Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1191-92 (8th Cir. 1984). Lord's reprimand of the executives was consequently stricken from the official record. See id. at 1194.
"Reintegrative shaming in corporate sentencing", Jayne W Barnard
I have a basic respect for the rule of law in general and realize that respect for the law per se often requires defending bad guys. but people in law should know how strongly people mistrust the actual legal system we live under.
Posted by John Emerson | Link to this comment | 03-31-06 9:26 PM
Apostropher: was Frank Zappa a cool, free-market dude like you?
LizardBreath: It's not ethical to opine affirmatively about the culpability of your clients in public. And yes, you will go to Hell for representing tobacco companies. But you may yet go to Heaven if you find another line of work. The law is a big industry. Use your imagination!
Posted by another lawyer | Link to this comment | 03-31-06 9:31 PM
I'm sorry to be so hard-nosed. One thing led to another.
These have been my actual opinions, though. The rule of law is a good thing in principle, but our legal system sucks. And since our political system also sucks, and our media, and our supposed opposition party too, I spend most of my time being seriously grumpy.
Posted by John Emerson | Link to this comment | 03-31-06 9:47 PM
Apostropher: was Frank Zappa a cool, free-market dude like you?
Way, way more so, actually. I'm anything but a libertarian on economic issues and am not remotely enamored with the invisible hand. On drug issues, though, including tobacco, I hold an extremely libertarian line. But believe me, that's got nothing to do with the free market and everything to do with the government telling me what I can and can't do with my body. As I said upstream, I have no problem with taxing the bejesus out of cigarettes.
Posted by apostropher | Link to this comment | 03-31-06 10:34 PM
142: I think you are not exhibiting proper deference to 140's putting of you in your place. A little cowering, please.
Posted by The Modesto Kid | Link to this comment | 03-31-06 10:52 PM
I only cower when it's clever.
Posted by apostropher | Link to this comment | 03-31-06 11:19 PM
138 gets it right.
"And after all the laws are down, Thomas, what would stop the wind that would blow then?"
Exactly!
Posted by Idealist | Link to this comment | 04- 1-06 8:13 AM
Just to clarify: My arguments in this thread are mainly or exclusively against the idea that tobacco manufacturers bear no moral responsibility for the deaths and illnesses caused by their product.
Posted by Matt Weiner | Link to this comment | 04- 1-06 8:24 AM
138: "...don't see how to prohibit such research in any sane fashion."
this is basically what I was looking for. It's not my area, so I really don't know what is possible. I think everyone can agree that big tobacco behaved very badly in this regard, but that's not the same as having a plausible legal action. I would like to see effective legislation to curtail this sort of behaviour, but I don't know if that is plausible. It is a difficult issue.
Posted by soubzriquet | Link to this comment | 04- 1-06 9:35 AM
139, 141:
I agree with you about the politics, and about the very, very limited use of legal process as a way for the weak to get redress from the powerful, or the poor from the wealthy. I'm just saying that the justice you want is going to have to come from politics -- while the legal system is limited, it's not worthless, and abandoning the rule of law to puinsh particularly loathsome people will not, in the end, get you the justice you want. It will just break the legal system for the purposes that it is still good for.
and 140: ?
Posted by LizardBreath | Link to this comment | 04- 1-06 11:23 AM
A look at IP law tells me that in some respects the law is already broken. Not only have Disney, Microsoft, and the pharmaceutical companies succeeded in getting the law rewritten according to their instructions, but they also use their legal departments to prevent small firms and private individuals from benefitting from these same laws. And they've bribed the Republican Party and half the Democrats into dancing to their tune.
Basically, if the political system is corrupt enough, the law becomes corrupt too. And I see it getting much worse rather than better, with the two new SCOTUS appointments.
Posted by John Emerson | Link to this comment | 04- 1-06 11:35 AM
Basically, if the political system is corrupt enough, the law becomes corrupt too.
Yup. This is absolutely the case. The legal system can't really do anything for us in the absence of political support - it's always going to be about as good or as bad as the elective branches.
Posted by LizardBreath | Link to this comment | 04- 1-06 11:43 AM
And I should stop arguing about this because I'm becoming ill.
Hope that the fact that you still are commenting means that you are feeling better.
Posted by Idealist | Link to this comment | 04- 1-06 11:46 AM
No, it means that I didn't get this blasted brief done last night.
Posted by LizardBreath | Link to this comment | 04- 1-06 11:56 AM
138 gets it right.
"And after all the laws are down, Thomas, what would stop the wind that would blow then?"
Exactly!
Apparently, all lawyers are realists and no lawyers are realists.
Posted by SomeCallMeTim | Link to this comment | 04- 1-06 12:08 PM
Apparently, all lawyers are realists and no lawyers are realists.
As often happens here, this is over my head.
Are you talking legal realism here?
Posted by Idealist | Link to this comment | 04- 1-06 12:23 PM
I was thinking he might be talking about realism in the medieval philosophy sense, but that'd be Thomas Aquinas, not Thomas More.
Posted by LizardBreath | Link to this comment | 04- 1-06 12:31 PM
in the medieval philosophy sense
That would explain why it flew way over my head.
Posted by Idealist | Link to this comment | 04- 1-06 12:33 PM
No, I meant in the legal realist sense, specifically as regards the indeterminacy of the law. ( I realize there are boundaries; it was meant as a joke.)
Posted by SomeCallMeTim | Link to this comment | 04- 1-06 12:46 PM
Just in the interests of accuracy (although the spirit of the line is well preserved):
Posted by LizardBreath | Link to this comment | 04- 1-06 12:59 PM
The page I pulled that quote from was using it in the context of stripping rights from accused terrorists, where these issues may be clearer. It's just isn't acceptable to strip legal protections from someone, because what they have been accused of is particularly bad.
Posted by LizardBreath | Link to this comment | 04- 1-06 1:05 PM
159 - I agree with you as regards tobacco companies, largely because their product doesn't bother me too much. I'm roughly an Apostropher-libertarian (Apostrotarian?). But I don't think people seeking the change would characterize it as "stripping people of of legal protections" so much as "distinguishing a specific set of circumstances from the general case."
Posted by SomeCallMeTim | Link to this comment | 04- 1-06 1:10 PM
Mmm. What I've been arguing here is that there isn't any legally principled distinction. (If you want to make one -- further regulate or ban the sale of tobacco -- legislate away! But you need to legislate to get there.)
Posted by LizardBreath | Link to this comment | 04- 1-06 1:45 PM
There have been, I think, lots of people who believe that there is not a legally principled argument supporting various controversial decisions in the last few decades. I think the principle complaint conservatives have about "legislating judges" is precisely that the decisions aren't based on principled distinctions. But I think they aren't the only ones. It seems to me that some supporters also aren't comfortable with the arguments in support of the decisions, and so try to come up with better ones. Roe is an example of this, I think.
Posted by SomeCallMeTim | Link to this comment | 04- 1-06 2:21 PM
160 -- I think the term you want is, "Apostrofarian".
Posted by The Modesto Kid | Link to this comment | 04- 1-06 5:15 PM
Apostropher is Ja.
Posted by The Modesto Kid | Link to this comment | 04- 1-06 5:16 PM
Having seen picures of The Mullet, I am now envisioning its conversion into The Dreads.
Compelling.
Posted by LizardBreath | Link to this comment | 04- 1-06 5:31 PM
I think the principle complaint conservatives have about "legislating judges" is precisely that the decisions aren't based on principled distinctions
Well that is one complaint. More generally, a common conservative complaint is that judges should say what the law is, not what it should be. For that reason, Roe v. Wade is a particular sore point for many conservative lawyers not just because of their views on abortion but because--as even many liberal legal scholars have conceded--there simply is little legal basis for Roe. It is classic case of a court deciding what they would like the Constitution to say rather than thinking about what it does say. Even if you like the outcome, Roe should concern you, just as similar cases on the conservative side (recent Eleventh Amendment cases come to mind) should concern conservatives. We all lose if the law is whatever the judge wants it to be.
Posted by Idealist | Link to this comment | 04- 1-06 8:52 PM
say what the law is, not what it should be
I think an anti-FS liberal would say that the law doesn't say anything sufficiently determinate to make the hard decisions; the language of the law allows for multiple reasonable readings, and judges end up picking the specific reasonable reading they like best. In a sense, within certain constraints, judges are always saying what the law should be. There's no avoiding it.
Moreover, "reasonable readings" is itself a hard issue; we appear to validate what is reasonable by effectively voting on it - we ask a set of people, "Is this reasonable?" It seems credible to believe that we can, without any bad faith, change the set of such possible readings by changing the set of such voters. For example, if we exclude women from such votes, it wouldn't surprise me to find out that the resulting reasonable readings vary greatly from the reasonable readings that would have existed had women been allowed to vote on the set. Same for minorities, gay people, etc. This is problematic in a country in which the legitimacy of the government rests notionally on the consent of the governed, but which has let different classes of people into the political process at different points in time.
Trivially, the great promise of conservative is stability. And stability is really important. But it's not clear that it's equally important to everyone, or that it is sufficiently important to justify its legitimacy in the face of other failings. After all, as we're finding out, Saddam's great promise was also stability.
Posted by SomeCallMeTim | Link to this comment | 04- 2-06 7:54 AM
the law doesn't say anything sufficiently determinate to make the hard decisions; the language of the law allows for multiple reasonable readings, and judges end up picking the specific reasonable reading they like best.
No doubt true in many circumstances. However, as LizardBreath and I have noted above in connection with the way some courts treat tobacco companies and other unpopular defendants, some judges go far beyond the reasonable reading they like best and instead simply go to the result they like best, making new law (or simply ignoring the law) in order to acheive that result. I do not claim that such conduct is ubiquitious or that conservative judges never do it, but it happens way too much (although it is less common now than it was twenty or thrity years ago).
For example, I would assert that among legal scholars it is accepted that for a variety of institutional and political reasons, the Supreme Court in Brown v. Board of Education decided the case on pretty weak constitutional grounds--in a nutshell, that black children suffered by being deprived of the opportunity to go to school with white children. While the result was generally agreed with, the flawed reasoning continues to affect Equal Protection Clause jurisprudence. In particular, it gave rise to a flurry of court decisions which, following its guide, were essentially law making, not constitution interpreting (one man, one vote is a classic example).
Further, while you will find liberal legal academics who will defend its reasoning, as I noted above, I think it is generally accepted that the reasoning in Roe is seriously flawed, and that it is all about the result, and not about the Constitution. That is why South Dakota can take the (in my mind outrageous) position that it can pass a law which violates established constitutional law in hopes that Roe will be overturned. Every judicial activist should see this as their chickens coming home to roost. If judges can ignore the Constitution, why not legislatures--or Presidents? Aren't we all be better off if we agree that all three branches need to be faithful to the law as it exists--rather than as we would like it to be--even if that means that our preferred policy choices might be harder to implement or maintain?
Posted by Idealist | Link to this comment | 04- 2-06 8:28 AM
For example, I would assert that among legal scholars it is accepted that for a variety of institutional and political reasons, the Supreme Court in Brown v. Board of Education decided the case on pretty weak constitutional grounds--in a nutshell, that black children suffered by being deprived of the opportunity to go to school with white children.
My general sense is that this is right. But my further sense is that this is not that unusual - on big cases, judges make decisions that are not well founded, and then academics make their names coming up with better justifications. Or perhaps it is unusual, but only in the sense that big cases are unusual.
some judges go far beyond the reasonable reading they like best
Again, I think "reasonable reading" is a lot harder to validate than you think; "reasonable" is a cultural judgment. I'd bet that my reaction to various justifications for Roe would be more in keeping with your own than LB's reaction to Roe justifications. She has a uterus and we don't, and her perspective is likely to influenced by that. Not wrongly influenced; there's no reason to assume that ours is the default perspective, except that it had been for many, many generations prior to the Roe decision. But I don't think our different understandings of what constitutes a reasonable reading depends on bad faith.
Posted by SomeCallMeTim | Link to this comment | 04- 2-06 9:00 AM
So bad legal reasoning gave us Roe vs. Wade, Brown vs. the Board of Education, and One Man One Vote? and that's bad?
What is your point? It sounds to me that good legal reasoning is something to be avoided.
Posted by John Emerson | Link to this comment | 04- 2-06 2:22 PM
I think an anti-FS liberal would say that the law doesn't say anything sufficiently determinate to make the hard decisions; the language of the law allows for multiple reasonable readings, and judges end up picking the specific reasonable reading they like best. In a sense, within certain constraints, judges are always saying what the law should be.
Where I split from Ideal, is in saying that the level of ambiguity in the law, and thus of the appropriate power of judges, is far greater in issues of constitutional law, particularly dealing with individual rights, than elsewhere. Tobacco cases piss me off because there is clear law that does not get followed by the judges, because of the identity of the defendants.
The cases Ideal is complaining about, on the other hand, seem to me well within the proper scope of judicial interpretations of the constitution. In Roe, for example, the Court had no choice but to decide what constitutional rights a fetus has -- that's not a decision that can be avoided, and the Constitution has no direct textual guidance (although 18th and 19th C legal history is consonant with the Court's implicit holding that the fetus has no such rights.) In the absence of such countervailing legal rights, the proposition that the right to choose one's own reasonable medical care unhindered by laws written on the basis of morality rather than public health or safety, seems absolutely within the scope of the rights implied by the fourth, ninth, and fourteenth amendments.
(I'd also like to distinguish between cases decided (1) because the judge thinks that's what the law should be, and (2) because the judge wants a specific party before them to win or lose, regardless of the law. In cases like (1), which would include Roe, Brown, etc., the judge may be exceeding their powers, but they aren't necessarily -- they're setting up a rule of law applicable to any parties, which is a part of what judges do. In cases like (2), e.g., the tobacco cases, where the judges don't want the law to be different, they just want to hurt the bad people regardless of the law, judges are unambiguously behaving badly.
Posted by LizardBreath | Link to this comment | 04- 3-06 8:01 AM
If you guys start arguing Baker v. Carr and Reynolds v. Simms, I will not get any work done today. Please start arguing the merits of those caes.
Posted by washerdreyer | Link to this comment | 04- 3-06 8:17 AM
Re: Brown, I have to agree that the cleanest and best decision would have been to simply overrule Plessy and adopt Harlan's dissent. Warren, essentially a politician, wanted consensus, a unanimous ruling for such a big change.
I learned con law from the iconoclastic Straussian George Anastaplo. This probably renders my everyday thoughts far more eccentric and idealistic than I even realize. Used to have a long list of decisions--Slaughterhouse cases, Erie Railroad, etc. I'd have loved to do over. My younger self wouldn't have been as comforted by Stare Decisis as I seem to be now, and would have been hot for trying. Maybe we'll get to find out soon what that kind of fundamental change might feel like, but I kind of doubt it.
Posted by I don't pay | Link to this comment | 04- 3-06 8:23 AM
re: 172 and 173
It's tempting, particularly to argue about Baker v. Carr, but I should get some work done.
I would note that with respect to Brown, the worst political aspect of it is often unknown to non-lawyers, and that is the remedy decision, which instead of ordering immediate compliance, told the states (my own words here) to give the plaintiffs' their rights at a pace that was acceptable to the states.
Posted by Idealist | Link to this comment | 04- 3-06 8:31 AM
"With all deliberate speed", wasn't it? Turned out awfully deliberate, and not so speedy.
Posted by LizardBreath | Link to this comment | 04- 3-06 8:37 AM
In Roe, for example, the Court had no choice but to decide what constitutional rights a fetus has -- that's not a decision that can be avoided, and the Constitution has no direct textual guidance (although 18th and 19th C legal history is consonant with the Court's implicit holding that the fetus has no such rights.)
There are many who believe that each of the assertions above are wrong. Roe is wrongly decided because the Court took for itself a role that state legislatures had previously held, something it did not have to do. Further, having made some study of 18th and 19th century state and federal constitutional law, I do not believe that that law supports the holding in Roe in the way you state. Finally, because the Federal government is one of limited powers, that the Constitution does not speak to a subject is a matter of some importance, not a reason for a court to go ahead and do what it thinks best.
Posted by Idealist | Link to this comment | 04- 3-06 8:56 AM
Oh, I'm not expecting to convince you -- we've had this conversation. But to lay it out slightly more explicitly:
(1) The abortion issue is properly before the Court if it implicates constitutionally protected rights. Whose might those be?
(2) The fetus's? If the fetus is legally a person, then it has all constitutional rights anyone else has, and laws that allow abortion are at the least very, very questionable, while laws prohibiting it are arguably mandatory. It seems impossible to me to constitutionally analyze abortion without taking as a threshold question whether a fetus is legally a person. (If it is not, I see no indication in the constitution of an intent to protect the rights of non-persons.)
(3) So is the fetus a legal person? I am aware of no legal precedent allowing a fetus to sue or to be sued, to own property, or in any other way to be a party to any legal proceeding. (That 'I am not aware' is sincere, by the way, not understatement. Ideal, who is about four times the Con Law scholar that I am, may know of something in this category. But I don't.) That, when added to the lack of mention in the constitution, suggests to me that fetuses have no legally cognizable constitutional rights.
(4) So does the woman involved have a constitutional right here? If you agree with the argument above, that the fetus has no constitutional rights that the Court will protect, the analysis is something like this: does a citizen have a right not to be prohibited from seeking medical treatment where the reason for the prohibition is moral, rather than normal health & safety regulation -- a parallel case would be whether a state in which Jehovah's Witnesses were a majority could ban blood transfusions. I think there's quite a reasonable argument that this (both Roe and the hypothetical JW case) falls easily within the penumbra of the Fourth Amendment, which references the right of the individual to be secure in her person (albeit in a different context) when read in the light of the Ninth and Fourteenth Amendments.
Posted by LizardBreath | Link to this comment | 04- 3-06 10:32 AM
It seems impossible to me to constitutionally analyze abortion without taking as a threshold question whether a fetus is legally a person.
I am aware of no legal precedent allowing a fetus to sue or to be sued, to own property, or in any other way to be a party to any legal proceeding.
You have set up a strawman here. Of course there are no cases holding that a fetus can own property, etc. And if that is the test you set for yourself, of course you meet it. And of course if you frame the argument as one where the only question is balancing the fetus's rights as a person (zero) against a woman's rights, the only answer must be unrestricted access to abortion.
IMHO, your arguments have little to do with the arguments against Roe. The question in Roe was whether, as part of the police power, a state could place limits on a woman's right to abortion. For the entire history of the Republic--until Roe--I believe the answer to that question was yes. Rather than write a long rant, here's a link to a speech by Judge Randolph from the Court of Appeals for the D.C. Circuit regarding another way the issue in could have--and should have--been decided. Warning, it's a long speech.
Posted by Idealist | Link to this comment | 04- 3-06 11:36 AM
You have set up a strawman here. Of course there are no cases holding that a fetus can own property, etc. And if that is the test you set for yourself, of course you meet it. And of course if you frame the argument as one where the only question is balancing the fetus's rights as a person (zero) against a woman's rights, the only answer must be unrestricted access to abortion.
I don't think it is a strawman. While I'll talk respectfully about the possibility that a fetus might have moral rights, or interests that should morally be considered (I don't believe it does, but I'll talk respectfully about it), in the Constitutional law context, the question is whether it has legally cognizable rights. I don't see any indication in the Consitution or elsewhere that a fetus has ever been recognized as the sort of thing that has legal rights. You can reasonably argue that the Constitution doesn't protect the right to an abortion, but it's hard for you to argue that that is true on the basis of any legal rights held by the fetus.
At that point, we aren't talking about a balancing of legal rights between the fetus and the woman -- we're talking about whether the woman has a constitutional right to control over her bodily autonomy in the realm of medical treatment sufficient to preclude regulation for reasons other than health and safety. While I don't say that the answer is inescapable, I think the Fourth, Ninth, Fourteenth Amendment argument is a perfectly reasonable one.
Posted by LizardBreath | Link to this comment | 04- 3-06 12:53 PM
Late to the party, as usual, and now cleaning half-chewed cheeseburger off my monitor. Fortunately, I'm at work.
Posted by Lex | Link to this comment | 04- 7-06 11:25 AM