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Thursday, August 28, 2008

Sebok on Loser Pays

Tony Sebok participated in last week's NewTalk discussion of loser-pays rules.  He's now posted a Writ column about both NewTalk and the subject.

--BC

http://lawprofessors.typepad.com/tortsprof/2008/08/sebok-on-loser.html

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Comments

This is hard for the lawyer. All lawsuits are negative value lawsuits. All settlements come from the public, in the form of higher prices or less access.

The proper response to injury is 1) Medicaid for all injured people; 2) tracking of injuries by a specific product; 3) past some numberries of inju, an immediate, regulatory demand to remedy the defect. That cuts costs, the deterrence of innovation, and results in an immediate remedy of the defect.

Posted by: Supremacy Claus | Aug 29, 2008 9:10:53 AM

I asked the moderator of one of Newtalk seminars, are there data on the deterrence of entire enterprises by torts. She happened to have a PhD in economics. She said, plenty, read Foundations of Economic Analysis of Law.

http://www.amazon.com/Foundations-Economic-Analysis-Steven-Shavell/dp/0674011554/ref=sr_1_2?ie=UTF8&s=books&qid=1220062383&sr=8-2

The disappointing Torts chapter regurgitated standard Coasean orthodoxy. First the Coase Theorem has no validity. See Pennzoil v Texaco for a catastrophic failure due to the total pro-plaintiff rigging, all the way up to the Supreme Court. See the 70% of cases filed that are weak, with total distortion by pro-litigation, biased rent seeking judges. Second, they made up charts about level of liability and the activity level of a defendant. Again, not a word about the most powerful economic theory of appellate decisions, and almost all policy decisions by lawyers, the Rent Seeking Theory. Nowhere is this Grand Unifying Theory mentioned in Posner's Economics book. The cult indoctrination has mentally crippled the topmost intellectuals of the law. They cannot see what is self-evident to random members of the public in the street.

That was not the question. Are there data about the dreamer in his garage, thinking up a new business, not knowing how profitable it would be, and feeling the pirates will come around after the very first dollar of profitability to consume all his time and worry, deciding to not proceed with the new business? What is the value of fully new enterprises, not yet formed, that have been deterred prior to even starting?

There a missing 6% of economic growth (3% instead of the natural 9% everywhere else advanced). It is in hiding, waiting for the land pirates to be stopped by a strong Executive. All tort reform proposals, including loser pays, are tiny concessions to prevent a meltdown of the tort system.

Posted by: Supremacy Claus | Aug 29, 2008 7:34:02 PM

In this case, loser pays would heighten deterrence of the entire business. Loser pays is a lawyer Trojan Horse to force settlement of weak cases. This case is not even a weak case. Proposed safe harbor of 1% of gross revenue of small business on expenditure on access has angered disability extremists (see the Rent Seeking Theory for torts as unauthorized tax by land pirates).

http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2008/06/13/carollloyd.DTL

Someone in a wheel chair should not be eating chocolate, anyway.

The revised ADA is 10 times harsher than the original. The threshold will be material restriction, instead of substantial restriction. The Act reverses many court decisions seeking to restrict the breadth of the definition of disability.

We will all qualify for disability, which is good. I intend to get one of those parking privilege tags for fat lazy people who should be parking as far as possible from the door to increase their exercise tolerance. I cannot fly 6 hours without my service goat. I get too anxious. Too bad it consumed a huge load of hay for breakfast, it is still sitting next to me on the flight to LA. Oh, and it gets very hungry every two hours, so hay will have to be served on the flight, at least three times. The revised Act will enable me and help me with my anxiety material impairment.

For every person in a wheel chair I have seen use a cutout or ramp? I have seen 100 skateboard punks zoom past me using the cutout or ramp. This is the Skateboard Punk Acceleration Act. That a Republican president signed this business killer proves the government is a 99% owned subsidiary of the lawyer profession.

Posted by: Supremacy Claus | Sep 2, 2008 3:51:05 AM

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