Daily Archives: January 29, 2013

Rolling Jubilee

Read about it here.  I might offer a few thoughts on the whole idea later, but this is a very positive development both practically and in terms of beginning an important social conversation.



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Reward Asymmetry II (Updated)

A little dose of reality here.  Jury verdicts are described in reverential terms and almost never “disturbed” – when it’s a guilty verdict in a criminal case.  Or when it is a “no cause for action” in a personal injury case.

Somehow, though, a jury’s verdict loses its sacramental power in the appellate courts when it awards “too much”.  In such cases the appellate courts can pick a number more to their liking by ordering a “remittitur”.

So here’s a case from 1996 in which an individual plaintiff was awarded about $300,000 in a police misconduct case in federal court.

Too much, said the 2nd Circuit.  Half of that is what we think it is worth.

Remittiturs are admittedly rare, though nowhere near so rare as “additurs”, which of course is the reverse.  There are lots of practical reasons for that.  Fights over what the jury awarded are almost always resolved informally.

But the point is that, unlike the reversal of a conviction in a criminal case, the prospect of a remittitur on appeal is a very real risk for a Plaintiff.  This is on top of the risk of trying the case in the first place, where a jury can easily – and often does – find against a Plaintiff entirely, in which case the Plaintiff and the Plaintiff’s lawyer (not that anyone gives a shit about him) come away with nothing for all that time and effort.  And that risk, by the way, is very substantial.  Probably 1 in 4 at a minimum, depending on what part of the country you are talking about.

It’s probably not a coincidence that the linked 1996 case concerned police misconduct.  As many others have documented over and over, courts in general are very protective of the police.  That’s extremely inappropriate, to put it mildly, but it’s the way it is.

On a deeper level this illustrates a profound bias in favor of institutions, as opposed to individuals.  The typical judicial mind instinctively recoils at the government’s agents being called to account by an individual.  If government agents are going to be called to account at all, the thinking goes, it has to be at the hands of other government agents.  To allow mere individuals injured by government agent misconduct to have a remedy against the culpable government agents invites chaos.

This is the true nature of judicial hostility towards claims brought under 42 U.S.C. 1983, reflected over and over in the case law.  It’s visceral, and it’s unalterable.  Judges simply identify very strongly with the institutional defendants and probably, in their heart of hearts, regard the Plaintiffs as troublemakers who created their own problems.

Another rule that is scrupulously observed in other contexts is near absolute deference to acts of congress and the legislatures.  Not so here, though:  42 U.S.C. 1983 has been effectively repealed by the federal judiciary.

And this is another illustration of reward asymmetry:  government actors face almost no risk that they won’t easily out and out prevail in any confrontation with an individual, and of course there is no risk at all they won’t be paid exactly what they expect for their efforts.  And in the extremely unlikely event they lose the money comes from an insurance company, not them.

By contrast, the attorney who takes up the cause of the individual in a confrontation with government actors faces an exceptionally difficult task with an enormous risk of financial loss.  Yet even when these risks are successfully surmounted, the referees of the game – the judges – are very likely to abuse their position to attain an outcome with which they are more comfortable.  And they are comfortable only with an outcome demonstrating that it is extremely difficult, and probably not worth the effort, to challenge the institutional actors.  In other words, they are not bothered by the reward asymmetry – they regard it as a Good Thing.

If you rig the game people won’t play anymore.  And unfortunately we are not talking about a game; we are talking about the rule of law, one of the most important foundations of civilized life.

Update:  Then again, in other contexts even $1 BILLION is not “too much”.  What context is that?  When it’s consonant with the government’s larger purposes, which in this case is demonizing the government of Syria.  It’s entirely symbolic, of course.  The Syrian government is never going to pay up, everyone seems to acknowledge.

In other words, the award has propaganda value only.  I’d call it a cynical propaganda ploy, but then I have no affection for Syria’s government.

The magistrate judge making the award is named John Facciola.  Wonder how many other billion dollar personal injury awards he has signed off on?  I think we can guess the number.

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Filed under financial crisis, Judicial lying/cheating, wrongful convictions