If we open up ideas like suing because the US should have helped the people in the concentration camps rather than protecting its own soldiers lives, we are opening up a whole new field for nuisance suits. Next, we’ll see a lawsuit against the US filed by Vietnam vets on the grounds that we shouldn’t have been there in the first place. Hell, let’s just hold the US liable for every act of war that it has ever engaged in. And for everyone who suffered therefrom. Or who would have suffered less if the US acted differently.
Or we could just say “fuck you, we liberated you, and you have the fucking gall to try to extort money from us for not doing it more quickly.” I can’t believe that anyone who lived through such an experience could ever try to turn it into an excuse to get money from the country that liberated them.
As for the lawyers that do the actual work involved, they are beneath contempt, and should not be tolerated by their peers. Hell, just for fun, other lawyers should sue them for making lawyers look bad. Hell, it has at least as much merit as suing the Sopranos for making Italian-Americans look bad, and force these examples of pond scum to engage in blatant hypocrisy.
Back to lawyers in general… I thought those idiot lawyers who owned the Canary Island dogs in SF were real sweethearts. Ah, I see, it’s the victims fault because when she had a huge dog clamped onto her, she failed to re-enter her own apartment! I get it! I didn’t realize that the responsibility was on me to extricate myself from a killer beast’s jaws when I am atacked without provocation.
I thought the claims that the victim was also to blame for wearing liverwurst/bitch-in-heat perfume were also a nice touch.
My lawyer pals are thrilled about what these chuckleheads are doing for the profession’s image.
The Sopranos is about a mob family. I am not a statistics whiz (more of a Gee whiz, actually) but I would think that a fairly high proportion of people who are in or work with mob families are, suprisingly enough, mobsters.
Think I can get hired as a expert witness at the trial?
This may be a hijack from the OP, but not from the thread title.
The current legal-eagle abuse that has me burning concerns class action suits. The lawyers agree to a settlement where everyone in the class gets a rebate coupon or a voucher with very restricted uses. But the lawyers get their 1/3 in cash. Sometimes the rebates/vouchers have been of a sort that those in the plaintiff class would be unlikely to want to use, such as a discount coupon to do business with an outfit that had already raked them over.
Seems that if lawyers takes a case on a contingency basis, with the deal being that they get a fraction of the settlement, then the lawyers’ cut ought to take the same form as the plaintiffs’ settlement: if the class members get vouchers, the lawyers get vouchers. If the plaintiffs get cash, the lawyers get cash.
This ain’t a duty of care question, even presuming that a duty of care exists. This is a question of military strategy, and of deciding how to use limited military resources (bombers).
I’m sure there were lots of little villages in Yugoslavia where the Nazis were treating the residents horribly. Did the U.S. have a “duty of care” to drop paratroopers into each village to liberate them? Of course not.
This is the whole freaking problem in a nutshell. It is this attitude that has turned the U.S. into such a litigious society. While that has been financially beneficial to me, it’s not good for us.
The importance of an issue is irrelevant to whether a court should be involved. The courts are not, and should not, be the cure-all for everything. A judge resolves legal questions, not moral or historical ones.
Are there important historical and moral questions about the U.S and the Holocaust? Absolutely. Should these questions be fully addressed and answered? Again, yes. Should a court be the forum? Absolutely freaking not. First, we can make moral judgments without needing a judge’s imprimateur. Second, how is a judge qualified to make these decisions? Wearing a robe doesn’t make anyone God (except inside the courtroom, of course ;)).
The Sopranos case doesn’t even have the defense of importance. If you have a problem with the Sopranos, then don’t watch. You want to get the show off the air? Organize a boycott. Personally, I’ll be laughing my ass off at you (hey guys, it’s a TV show), but more power to you. Don’t be wasting the judge’s time and everyone else’s tax money to try to get the judge to say something - the Sopranos is offensive - that you have the power to say all by yourself, and to the same effect.
I have unknowingly been part of several class action suits, but so far I have always gotten cash. I have always gotten cash. One time I got $1.27, one time I hit the motherlode for $3.32 and just a couple months ago some heroic lawyers got me a settlement check from an evil credit card company to the tune of 79 whole cents. Even when you get cash, you don’t get any cash.
[lawyer hat on] And therein lie the legal questions. Is the military, or more correctly military strategy, subject to the rule of law? If so, what is that law? If so, does that law include a duty of care assumed once a course of action is entered into? Do the facts put forward in this instance (and not some other instance, e.g. Yugoslavia) meet such a test? These questions require a lawyer’s involvement, regardless of how generally distasteful such litigation may be held. While the underlying issue may not be one that many people would want to see litigated, I suggest that it can be brought forward, and since it can be brought forward, then a lawyer meeting his or her professional duty in bringing it forward should not be pissed on. [/lawyer hat on]
[lawyer hat off] I’m with you on this. One of my past lives included being paid to huck people off waterfalls, and still involves teaching and participating in high risk activities, so more than most I am very concerned about the overall trend toward litigation. As an individual, I have little patience for people trying to reach into others’ pockets for their own misfortunes, or re-fighting old wars rather than working constructively together for the future. [/lawyer hat off]
[lawyer hat on] But as a lawyer, I have to recognize that the system as it stands requires scum sucking bottom dwellers to represent their grubby, greedy, grasping clients fearlessly; does not discourage novel tort claims; and does address historical issues. I suggest that rather than railing against the tools, effort would be better spent at placing limits on the system. [/lawyer hat on]
BTW, for folks wondering how a court might go about addressing a historical wrong, the Ontario Court of Appeal recently came out with an interesting decision involving law from the 18th century and transaction from the early 19th century which is only being contested today. I think you K-dogs (Sua ;)) might find the common sense and thoroughness of the decision reassuring. It’s a good read.
Hmmmm, better watch out against being third partied with winnings like those.
Seriously, here’s another way to look at it. Let’s say people in a country expect a certain level of protection (protection from bad drivers, faulty wiring, hot coffee, whatever…). How do they go about ensuring that level of protection?
At one extreme, they can heavily regulate to prevent problems, and also put in place a social insurance program (welfare, medicare, etc.) as a catchall.
At the other extreme, they can rely on self-correction through liability. (Keep the corps in line with massive litigation. Leave the catchall to private insurance.)
I would suggest that the US leans more toward a self-correcting liability based system than many other first world nations. Thus, for example, you have more litigation than in my country (Canada), but you also are less fettered with regulations and social insurance costs.
Thus it is your patriotic duty in America’s war against socialism to fearlessly and selflessly accept those class action cheques.
That just chaps my ass. I got airline vouchers once after a price-fixing class action suit. A bunch of coupons of various values that together may have added up to more than $100, but they had to be used on flights of a certain value. As in, you can use one of the $30 vouchers on a flight that costs over $300. And then only when flying to a city with a Mayor who is a Virgo on the third tuesday of a month when Mercury can be seen 2 degrees north of arcturis but not if John McLaughlin wore a tan sport coat on TV the preceding Sunday. So even if you can manage to use the damned things, you have to not only patronize the airline that screwed you in the first place, you have to use them to the tune of thousands of dollars in fares.
Another nice point: We earned the vouchers when I was flying back and forth from college a lot, but got them after I’d graduated and wasn’t flying so much. Just give me the goddamn cash refund you figured I was owed. Some “settlement;” I bet those airlines were really smarting after that one! I’ve been meaning to write the judge and show him my now-expired, never-used vouchers and tell him how “just” this was.
When your only tool is a hammer, every problem looks like a nail. Or Muffin demonstrates the analytical tunnel of too many law school graduates (and why I forbid US trained legal staff from making inputs in our policy, thank god there are none here).
Of course, and it ** is **. You are aware of the Geneva Convention, yes? Military courts of course, however problematic, also exist. There is a developed body of law in this area, I see no reason for American civil law to come blundering in some 60 years after the fact. The stupidty of such a move staggers.
See above.
What possible meaning does this Anglo-American civil law concept have in re warfare?
No, they do not. As Sua has said, as many posters have said, not every question and subject can or should be resolved through litigation, however expansive American habits have become in this area. It’s reasoning like this that makes me glad that I no longer work in the USA.
Spare us the law school pieties.
That something can be litigated does not mean that in any rational sense (outside of that very special law school realm of rationality) it is either * useful * or * rational * or even * efficient * to resolve a question in that manner.
It’s precisely this American-Law-School tunnel vision thinking that has repeatedly gotten Monsanto in trouble and done immense damage to the biotech industry. It’s precisely this thinking which has turned an otherwise efficient (in an aggregate sense) method of conflict resolution into a quagmire.
Historical issues unless they represent real, valid and living claims, should not be dealt with through courts. Insofar as the tools may be broken, it strikes me as perfectly reasonable to rail against them.
Of course, this (a) strikes one as an entirely different kind of historical problem. One which clearly falls within the realm of common law by its very nature (a contract, n’est ce pas?) (b) as such not in any way relevant to the question of bombing rail lines.
(Despite, by the way, my harsh comments here, I am in no way one of those idiot-knee-jerk anti-lawyer types. Legal services are valuable and I appreciate the entire profession. However, over-extension of an otherwise useful tool does harm to both the users and the tool itself.)
Class action abuse is, in my opinion, a real problem. However, this judge deserves a lot of credit for his decision.
The gist of his decision was that he slashed the contingency the attorneys sought, blasted them for creating a litigation, then ruled that 1/4 of their award was to be paid in the form of the vouchers they “won” for their clients.
[lawyer hat on] Bullshit. Collounsbury has already addressed this well, and I have just a few things to add.
Your theory - there is a legal issue, perhaps a duty of care, on whether the military is required to alter their military strategy to protect innocent lives from the actions of the enemy. Do you realize how ridiculous that theory is?
“Ike, the Germans are killing lots of people in the Caucusus. We have a duty of care to send our troops there. Sure, sending our troops there will completely kill our D-Day plans, and therefore prolong the war, but our lawyers say we have no choice.”
“Patton, innocent civilians are being killed both in Lyons and Marsailles. I know you only have enough troops to attack one of those places, but we have a duty of care to save both groups of civillians. Split up your forces and hope for the best.”
Lawyers have a professional duty to bring this case?! Lawyers have a professional duty to bring meritorious cases. Bringing forward a non-meritorious case is a violation of both the Model Rules and, in this case, the Federal Rules of Civil Procedure.
Part of a meritorious claim is that the case be justicable. Any lawyer worth his salt will realize that a question of the proper use of military resources during a war is not an issue for the courts. The Supremes have made it very clear repeatedly that they will defer to military necessity.
The rules already exist, and the attorneys bringing the Holocaust and the Soprano suits are violating them. The fact that the rules are too rarely enforced does not mean that an attorney should feel OK violating them. An attorney have a duty to represent his scum-sucking clients if the clients have a case. I was on this board railing against those who were blaming lawyers for the election fiasco. There, there was a case, and it was Bush’s and Gore’s fault, as the client, in choosing to pursue them. That is emphatically not the case here.
BTW, novel claims of any kind require a good-faith belief that the novel theory will be adopted.
It’s a matter of degree. We’re not talking about splitting an army or cancelling an invasion. We’re talking about dropping off a few bombs on areas which allegedly were already targeted for other purposes. This somewhat reduces the deference to military necessity position.
Is there a duty to protect innocent lives? Not that I’m aware of. I agree it would be a novel duty. That’s where I expect the whole case will come to a grinding halt for the plaintiffs. But in a golly-gee, Wizard of Oz world, would that be something one would expect of a liberation army? Of course we don’t live in such a world, so I believe that such an outcome would be remote. Same goes for courts second guessing the military. It just doesn’t happen. But is it possible that this case might be the one to make it happen, given the nature of the circumstances in which it is alleged that so much could have been accomplished with so little effort? Not is it likely, but is it possible?
Where we differ is that I believe that the concentration camp matter might be justiciable. A long shot yes, but absolutely impossible no. Any lawyer taking it on would have to risk being smacked down hard. La règle du jeu.
A “K-dog” is a fine and noble beast which is commonly thought of as the corporation’s best friend, guarding against bad contracts and offering companionship for an hourly rate.
Unfortunately, K-dogs and their masters are occasionally nuisanced by infestations of “parasitic scum”, known for litigating anything that they have no knowledge of provided a contingency is in the offing, and for promoting the “spin the wheel of justice” theory of law.
Military law is the body of law concerned with the maintenance of discipline in the armed forces. Military law in no way relieves military personnel of their obligations to their country’s civil code or to the codes of international law, as recognized in various conventions. In short, it does not preclude civilians from seeking civil damages against the US government.
How the Geneva Convention might preclude a tort action by Jewish people against the US, be they Convention IV protected or not, is beyond me, unless you have found a term which I have missed. I have never come across such a term in that or any other international instrument. Just because an instrument does not positively set out an international duty, does not necessarily mean that it precludes a civil duty. As far the intermingling of public international law with domestic law goes, the US is a bit of an oddity in that Article 6 of its Constitution makes all treaties part of the supreme law of the land, bringing international instruments into the gamut US domestic law, whereas in many other common law jurisdictions, such as Canada (where I am a lawyer), the courts will apply the law laid down by statute or common law, even if it is inconsistent with a treaty which is binding upon us, for the breach of a treaty is irrelevant to the rights of the parties to litigation in our courts. Either way, there is no delineation involving international instruments which precludes civil action of the type we are discussing. If you have a pinpoint cite in the Convention (or any other international instrument) which absolutely precludes civil action against the US government of the type under discussion, please put it forward, for I would be most interested in having a look at it. As it stands, though, I believe that the US civil courts defer to the military’s necessity as a policy practice, rather than an international obligation.
If, to grant you your point for a moment, a developed body of law (of whatever area) has clearly precluded this sort of tort action (as I expect it may well have given the reluctance of the civil courts to second guess military decisions), then it will be dismissed summarily and, if the advancement of the case is so preposterous as you suggest, the court is free to apply sanctions against the lawyer personally. No need for us to throw little balls of defecate derision at the lawyer – the court will do that for us. If, however, the developed body of law has not precluded this sort of action, then the matter may very well have been properly brought forward. Either way, it is not for you and me to denigrate the lawyer bringing forward the case. Let’s wait and see what the court has to say about the case and the lawyer.
I accept your point that society is too litigious, and that this is not good for either society as a whole or the people involved in the process. I also agree that often members of legal community become so focussed that they lose sight of the big picture. That being said, I take issue with your position on what you term “law school pieties.”
Law school pieties? Hardly. This business about acting “fearlessly” to put forward the client’s case goes to the heart of what the profession is about. Sometimes it is buried so deeply that it is almost forgotten (e.g. churning through slip & falls or residential real estate), and sometimes it is misused (e.g. nuisance suits or self-serving class actions), but sometimes it is of fundamental importance (e.g. defending murderers or correcting societal wrongs). I occasionally came across this “fearless” thing in law school, and never gave it much thought, but as a lawyer who works on publicly contentious matters, I think about it quite often. Quite literally, the litigator is sometimes the only thing that stands between the client and the forces of the state and the pressures of the press and the public. This “fearless” business is not law school pap. It is very real, and depending on one’s type of litigation practice, can be in one’s face on a frequent basis.
More specifically, the “fearless” aspect does not originate out of law school or armchair academics; rather, it is has been put forward by the House of Lords, and formally binds me as a lawyer through my rules of professional conduct. “. . . no reasonable man could think less of any counsel because of his associations with such a client . . . . Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.” Rondel v. Worsley, [1969] 3 All E.R. 993 at 998-999 (H.L., Lord Reid). The day I forget this as a litigator is the day I hold myself open to disbarment for negligence.
My country’s own Supreme Court has commented on the role of prosecutors in the context of their duty to the system and the importance of not bowing to public pressure. I think it can be applied to all counsel with respect to whether or not a case ought to be avoided due to general public animosity. “When the Crown allows it actions to be influenced by public pressure the essential fairness and legitimacy of our system is lost. We sink to the level of a mob looking for a tree.” R. v. Curragh Inc. (1997), 113 C.C.C. (3d) 481 at 517 (S.C.C., McLachlin, J.) Again, this is not law school piety. It is a very clear and resounding direction from the highest court in my land.
I quite agree with you, however, it is not up to you or me to decide on the utility, rationality or efficiency of mounting a case. That decision is the client’s assisted by the dispassionate advice of the lawyer. In my jurisdiction, no lawyer is obliged to support that decision by taking on the case, but at the same time no lawyer should be disparaged for taking on a justiciable case except in the most rare of circumstances, and it is for the court to decide those circumstances and the appropriate sanction, not you or me.
And that is all I am putting forward; that a lawyer should not be denigrated for taking on a publically distasteful case which on its face is not an obvious winner. I’m not suggesting that the concentration camp matter would be or even should be successful. Indeed, I have already stated that I personally believe that the courts should not be used to re-fight old wars. In this case, I think that is just what is happening, and I think it is wrongheaded. But it is a very great leap between disagreeing with the worthiness of a case and denigrating the lawyer. If there truly is no cause of action, then the court will deal with it quite handily, and give the lawyer a slap in the head if he or she really was wasting everyone’s time Let’s permit the matter to be brought to a court of proper jurisdiction, and then be shot down if that is what the court decides, rather than preclude via public pressure the bringing forward of unpopular but possibly serious matters.
I think that Doherty J., perhaps the brightest light on my province’s Court of Appeal (and I believe we have a very strong Court of Appeal without a loser in the lot), put it in perspective with: “Counsel is more than a mere agent charged with the responsibility of dutifully following the client’s instructions, no matter how wrong-headed they may be. Counsel is retained to represent the accused and conduct the defence. In doing so, counsel is obliged, within ethical and legal limits, to protect the interest of the client. Sometimes those interests are imperilled by the instructions given by the client. In those situations, counsel’s duty to the client requires that counsel resist those instructions even though counsel may eventually have to follow them.” R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 72 (Ont.C.A.). I suggest that with regard to the concentration camp issue, putting forward the case falls well within ethical and legal limits (for reasons I have previously put forward), and therefore should not be held against the lawyer.
Different point of law, yes. Different type of analysis, no. The court found the law at point to be grounded in both imperial policy and military strategy, and then peeled through the historical layers, including treaties between nations. It did this to address a contract matter. Would I apply it directly to the concentration camp tort matter? Of course not. I am not putting forward any law in support of or opposition to the merits of the concentration camp case. I simply hold out the Chippewa decision as an example of how when addressing typical common law matters (be they tort or contract), a court can do quite a good job at looking at historical issues which have huge ramifications today, even if those issues and the resulting laws were founded in imperial policy, military strategy and public international law, if the parties involved included military, political and bureaucratic figures jostling for power, and if the matter may be subject today to equitable limitations or even entire paradigm shifts. I did not put forth the Chippewa case as evidence of why the concentration camp should succeed. I put it forward as an example of how dispassionate and well informed courts can do a good job on such cases, and by extension, may be better prepared to deal with such matters than the press or politicians, both of which are often more subject to the passions of the mob.
Are there other options out there which could work even better? Hopefully, yes. Truth and reconciliation. Commissions of inquiry. Collaborative law. ADR. The only limits are creativity, and in this sense the traditional narrow focus of conventional legal training on litigation is a pity. But I still would not go so far as to say it justifies the denigration of the lawyer bringing the concentration camp case forward. More to the point, I don’t see how taking cheap shots at counsel helps create and put into place more effective solutions.
Finally, if a court believes it should not wade into a matter, all it has to do is say, “Thanks, but we’ll pass.” Calling the plaintiff’s lawyer foul names should not affect such a decision to decline jurisdiction, and any degree to which it might would be improper. We do not decide the court’s jurisdiction; the court does, and we should not interfere with it’s prerogative unless we do so through legitimate statutory restrictions.
Given all this talk in the US recently about massive reparations for past injustices based on ethnicity or religion, if there is serious public concern that the courts will go overboard in their decisions, then perhaps it is time to look toward voting in place some reasonable statutory restrictions along with some creative, non-litigious alternatives. I don’t think, however, that following up on Shakespeare’s recommendation would be overly effective.
::Ah grasshopper, when long, rambling and off point fails, throw in towel before embarrassing self further::
OK. I give. You’ve managed to convince me that (barring some rabbit in the pleadings we are not aware of) the lawyer bringing forth the concentration camp action does not have a hope in hell, and should be slapped with personal costs accordingly.
(And a soundly defeated Muffin crawls off into the corner.)
Thanks for a really good debate. Despite being trounced, I really enjoyed it and learned a lot from you folks. Leave it to Sua and Collounsbury to turn a pit thread into a terrific debate. You two really made my day!
No, you are not talking about that. The destruction of rail lines going into Auschwitz, or of Auschwitz itself, would have been a military undertaking of massive proportions. WWII heavy bombers hit nothing with any real degree of accuracy, so a great many bombers would have had to be sent to have even the smallest chance of success. The mission would have had to be carried out in broad daylight and would have required the bombers fly to the limit of their range, across the entirety of Germany (Auschwitz lies on the old Germany/Poland border, further than U.S. bombers usually went) meaning that they would have been subjected to about as much AA fire and fighter interception as the Nazis could muster. Even with escort, the mission would have required hundreds of bombers, would have suffered severe losses, and probably would not have succeeded without repeated efforts. The bomb run would have been extraordinary difficult, as rail lines are not easy to destroy by level bombing and the main track going by Auschwitz lay right between the two main camps, Auschwitz I and Auschwitz II (Birkenau.) There are several routes in by rail, so hitting one track doesn’t accomplish much anyway.
It could not have been done without very sustained effort, which would have probably ended up killing as many U.S. airmen and Polish civilians and camp inmates as it would have saved potential victims.
Yes, it’s also the sole code relevant to the conduct of war, besides of course such things as the Geneva Convention.
In a state of war? [cough cough] Perhaps you should look into this.
Never said that it precluded my dear close reading lawyer, I said it was not * relevant * to a state of war.
My dear lawyer you misread my comments. I was not referring to * precluding * tort actions, but rather indicating that tort actions in a state of war are ** motherfucking meaningless **. My god, this tunnelvision is astounding.
Or a clue. Civil law, think about in contrast to martial law. Think about the root meaning of both, think about their terms. Civil law is the law of a society at peace. A state of war imposes specific conditions. Soldiers kill people, murder sanctioned. All a bit abstract back in the
States since we’ve not played on our own turf in a long time, but…
I snip the rest of the legalist rambling as you continue to utterly miss the point.
Absolutely there is a fucking need. Social scorn for unneeded, ultimately destructive usage of social tools is in fact the only real way that a civil society maintains itself. Laws are a mere codification of such, and are only good insofar as the wider society accepts that. Come and live in some societies where such understandings and rules are non-existant. It’s motherfucking wonderful.
Frankly, the idjits who brought this both disgraceful and stunningly stupid case should be spat upon and shunned.
Let me state something clearly, something with apparently American law schools rip out of the brains of too many of their students – courts and laws are ** not goddamned replacements for public morality or substitutes for public policy** they are one form of conflict resolution.
It is absolutely incumbant for a healthy civil society to comment, if necessary with derision, even scorn, on actions which ultimately undermine that same society’s rule base and institutions. As such absuses of the legal system do.
Bloody hell, I think I should start a program. Take one tenth of all North Americans and force them to live in the developing world for a while. Teach them some motherfucking reality lessons.
Let me add spare us your law school argumentation also.
I could give a flying fuck about your pious recitation of fearless lawyers. Listen, I fucking live in a country where when I go to the countryside for site visits, I travel under armed fucking escort with motherfuckers wearing flak jackets. Where lawyers who fuck with the government, as well as poor fucking sociologists who publish annoying this, can get charged with capital crimes up to and including treason. I’ve seen fearless. This sort of fucking nonesense does not merit being mentioned in the same fucking breath with fearless.
Indeed it is. See my comments on civil society.
I agree, to the extent the case is sensible. Otherwise, I do not agree.
I have not the stomach to continue this idiotic line of argumentation.
(I would like to add I support Rickjay’s rebuttal to your comments in re the issue of bombing and sugest this sort of stunning naivete verging on ignorance is yet another reason why civil law must not enter into this arena. The phrase more harm than good comes to mind)
