Serious question for those of a libertarian-ish bent

Great Debates
1

I was listening to a radio show about some of the problems in the California judicial system because of a huge lack of funds. They have courthouses completely closed, cases are taking years to get to court, etc. The estimate of the expert they were talking to was that the shortfall is “hundreds of millions of dollars.”

I know that some anarch-ish and libertarian-ish people think the courts (whether formal or less formal) would be a or the solution for lots of conflicts between individuals. That there is no need for certain types of regulation, for example, because if someone were poisoning your well with chemical run-off, you would sue them. (If you don’t believe in this particular example, I’m sure you can think of one. Please don’t make this thread just a quibble about any one example.)

But without money in the system, it would be pretty hard to have any sort of recourse from either a formal OR an informal system. And if you were increasing the number of suits, the amount of money would just go up, wouldn’t it?

So, for those who feel that private suits are a better solution for at least some of the things we handle either governmentally now, what does the court system look like, how do you afford it, and how many suits would we be talking about?

Note: If you aren’t a libertarian or libertarian-ish, please allow people who are to answer before you do. Thanks!

2

I’m libertarian leaning, but I’m not a “big L” member of the party of anything like that.

Where you make the bad assumption is here:

Libertarians want a smaller, more limited government. Many of the things that our huge government does are things that Libertarians disagree with. However, this does not mean, as many people often assume, that they want no government at all.

Depending on how it was set up a Libertarian government might have a lot more spending on courts than our current system.

There’s no reason to think that courts in a Libertarian system would need to run without money.

3

I’m sure that no libertarian would be surprised to learn that it’s the state of California which is running out of money for its court system.

California has some of the highest taxes in the country. Only three other liberal paradises have higher taxes: New York, Connecticut, and New Jersey. If you tax people too much and spend too much, you run out of money. I bet that low-tax states such as Texas and the Dakotas don’t have any trouble finding money to fund their court systems.

Liberal Democrats have dominated California for years. They have ramped spending to sky-high levels for all kinds of things, but most of all, for the pay and benefits for government employees. They also spend money on all kinds of nanny-state nonsense. Because of this spending spree, the state is running short on money for all the things that it actually should be doing, such as having a functioning court system. The high cost of paying all those employees is “crowding out” everything else that needs money, including courts, schools, universities, state parks, etc…

Okay, so that’s California’s problem on the revenue side. California also has a problem on the other side: its courts do to much. Contrary to the OP, I doubt there’s any libertarian on the planet who thinks that California’s courts do too little. Government regulation and lawsuits are not an either-or proposition; they’re a both-or-neither proposition. California is famous for its huge number of regulations. For instance, when I went to college there my favorite pizza place was shut down for having hot water at 168 degrees Fahrenheit–the law required 180 degrees. The state also has made it easy for lawyers to sue businesses about very minor violations of trivial regulations, and win huge judgments by doing so. As a result, California has lots of wealthy trial lawyers and few thriving small businesses. This blog, written by a guy who runs campgrounds there, does an excellent job of documenting the craziness of California law.

So in short, as a libertarian I say this: fewer laws + fewer opportunities for lawsuits + lower taxes = a better court system.

4

You didn’t answer the question. Please start your own thread if you want to harangue California. Thanks.

5

I didn’t make the assumption they would need to run without money. I am making the assumption that they will need money. So, how much money are we talking about and where will it come from? How many more suits must such a system be prepared to handle? How much will it cost? Is there an idea at least about that?

6

Being vaguely lib-ish, myself, I can see how ideally the judicial branch gets beefed up to resolve disputes, while the executive and legislative branches see a stark reduction in their powers.

7

This is my take on it too. Im a libertarian but not a fundamentalist libertairian. There are things a government needs to do. Having a certain degree of control over the legal/prosecution system ought to be one of them.

I think this thread may be for the die hard libertarians to take on.

8

I’m a libertarian-ish person, so I’ll see what I can do.

Why wouldn’t there be money in the system, if it were Libertarian? Libertarians/libertarians don’t want no government (at least the non-crazy types don’t), and they aren’t opposed to funding those aspects of the government that they feel need to be funded (the court system is pretty much one of those that I think most Libertarian/libertarian types WOULD want to be funded), so I think you are picking a bad example to ask about. The short answer is that it would be fully funded, probably much better than California, since there are a lot of things that are paid for in California that Libertarians/libertarians would get rid of, freeing up more money for the core stuff that the government SHOULD be doing.

9

As I explained later, I wasn’t trying to suggest that there wouldn’t be money in the system. I would rewrite it if I could, but I can’t. It was supposed to be an acknowledgement that we all agree you can’t do it for free.

10

I guess I’m not getting it then. I think it will be fully funded, perhaps funded more than it is today (certainly in California ;)). You still seem to think that it will be underfunded (i.e. acknowledging that there just won’t no money in the system), but I’m not seeing it. This is a core government service, and something that WOULD be fully funded.

There are many other things that Libertarian/libertarian types would cut or change, but this is probably one that would look pretty much exactly the same in Libertopia as it does in the modern US…well, except in California.

11

Actually I did, by pointing out the flawed premise. In the thread title you say it’s addressed to “those of a libertarian-ish bent”. Yet in the OP you address “those who feel that private suits are a better solution for at least some of the things we handle either governmentally now”. Apparently you think that these two groups are the same–that’s your flawed premise. Those of a libertarian-ish bent do not want to see more lawsuits. We want to see far, far fewer lawsuits.

Addressing the questions specifically:

what does the court system look like

It’s a lot smaller, because it has a lot fewer lawsuits to deal with, as I said.

how do you afford it

Cut taxes, cut spending, and there will be money aplenty, as I said.

and how many suits would we be talking about?

A lot fewer than we have right now, as I said.

12

As others have said, libertarians aren’t in favor of no government, but in general are in favor of smaller and more localized government. One of the many benefits of having a smaller government is that it ought to be more efficient, there’s just less overhead with a smaller government with less moving parts. Thus, from a libertarian perspective, given the sheer size of California, in terms of the geography, population, and economy, it has an already difficult time, and having a larger government just makes it worse.

That said, I think most libertarians would agree that the courts are an essential function of government (some will disagree, but that’s pushing borderline anarchy). As such, given that the government wouldn’t be funding other things that aren’t an essential function of the government (perhaps public schools, various regulatory agencies, etc.), then there would be more funding for the essential functions.

There’s also other proposals that could go along with this from the small government side. For instance, there’s always the complaint about frivilous law suits, perhaps two birds could be killed with one stone by having more of the costs of court fall on those involved in the civil case. So, for instance, if I sue my neighbor for something legitimate and I win, I receive appropriate damages and he is also responsible for paying my costs in taking him to court (lawyer fees, filing fees, lost work, etc.) and court costs (building upkeep, pay for the judge, jury, and court staff). Similarly, if I file a frivilous suit and lose, the burden of those costs fall on me instead. Thus, the civil court remains fully funded and available for those that need it.

There would still be the issue that criminal court, in general, needs to be publically funded because it’s not just settling a dispute between two parties, but an issue between the party and the state. That would obviously have to be paid for by whatever means the government gets it’s revenue, likely taxes and fees.

The bigger issue would be what should and should not fall under which. In my opinion, it should be broken down strictly by who is and is not wronged, whether the state has a say in it. So, for instance, I think the state does have a say in a polluted water source since it has potentially wide-spread repercussions, but perhaps some things that are traditionally seen as crimes that the state prosecutes might be better served through the other method, like perhaps an assault charge or the like.
Anyway, that all said, I think the biggest issue here is just the misconception of what libertarianism represents. Even if it were conceded that reduced regulations would increase the costs in civil courts and the like, it does have reduced costs in actually applying the regulation, or at least in applying it on a smaller and more local scale. In fact, a big part of the idea here is that by taking some of the onus off of the government to perform regulations and put it on the parties themselves, they’ll be more inclined to make and follow reasonable restrictions because the cost is coming out of their pocket rather than being distributed to everyone via taxation.

13

So, for those who feel that private suits are a better solution for at least some of the things we handle either governmentally now, what does the court system look like, how do you afford it, and how many suits would we be talking about?

14

I don’t think I follow how reduced regulation saves money in applying fixes to what the regulations were designed to fix. At least in some strains of libertarianism (and I know that there are millions. I really don’t want to debate examples, so if pollution doesn’t work, sub in something that does, like FDA regulations or OSHA regulations or whatever you would see being handled at the lawsuit rather than at the regulatory level), if I pollute your land, you sue me rather than going through the government for a fix.

If I pollute a hundred people’s land, they all have to sue me, right? How high would that go?

15

Well, how do they afford it now? My honest opinion is that the court system in Libertopia looks pretty much like the one we have today. I suppose if Libertarians got their way and there was a mass of deregulation then there might be more civil type suits, but there are a lot of those now so I doubt it will be that much different, because on the one hand there might be more civil suits, but on the other there would be a hell of a lot less criminal suits since a lot of stuff that’s illegal today and tie up the courts would be gone, so my WAG is it would be a wash overall, and pretty much have a similar volume. I guess that’s what you are asking…yes?

16

How do they afford it now? They don’t. That’s what the OP was about, how people aren’t getting their day in court right now because there isn’t enough funding. This is primarily civil suits, not criminal.

17

How does the government afford it in Libertopia? Well, because it’s a core function, so it gets fully funded, while other things that aren’t, don’t. To put it in terms of an example you used in your OP, California COULD afford to fully fund their court system (a couple hundred million dollars, or even a billion is nothing for an economy their size) if they weren’t paying for all the other crap they pay for.

If you mean individuals, well, again, how do people afford it today? Again, IMHO anyway, it’s not going to be radically different between how it works today and how it would work in Libertopia. Other things, sure…but the court system? It’s going to be basically the same overall.

18

The problem with this (and thank you for answering it) is that people don’t really afford it very well right now, and obviously there are big problems with delay. But we have government and regulations that aim to protect the people who can’t afford it now. We may disagree about whether they successfully protect people (though I doubt we’re incredibly far apart), but that’s the aim.

So, if we lacked those agencies, and if people couldn’t afford the suits (again, many can’t afford it now), what then? Is there a back up plan of any sort?

19

A couple of answers:

  1. A huge amount of the current cost of the judicial system is tied up in enforcing laws that libertarians would not support - primarily, drug offenses. But libertarians would also be against capricious sentencing which tends to choke up the system with appeals and which gives too much power to prosecutors and judges in determining which laws to enforce.

Get rid of the drug offenses, empty the prisons of drug offenders, and the cost of the judicial system goes way down.

  1. Libertarians believe that a proper function of government is the maintenance of courts of law to settle disputes. This breaks down if the cost of the settlement process acts as a barrier for people seeking redress. So I think it’s wholly consistent with libertarianism to provide hardship funding for court cases to those who cannot afford to maintain their own defense.

That all said, I don’t think it’s fair to say that the judicial system will replace all regulations. Libertarians are aware of areas where the market and judicial system simply can’t be effective tools. If I open a plant that pollutes everyone, but the damages done to each individual are too small for them to bother suing me, or if the damages are diffuse enough that it’s impossible to make causal links between pollution and the damage it causes (acid rain, for example), there is a role for government regulation.

Where libertarians draw the lines with respect to regulation is where those regulations are used to direct change in society, to limit profit or otherwise control the proper functioning of the market (anti-gouging laws, price caps, minimum wage laws, rent controls, that sort of thing), or regulations that substitute for human choice in a well functioning market (laws against cigarettes, drug laws, safety regulations where the safety choices are obvious to the consumer, etc). In other words, nanny-state types of regulations.

But when it comes to regulations regarding fraud, hidden defects, misrepresenting products, the lines become fuzzy and libertarians would probably look at some of them on a case-by-case basis.

For example, I believe people have a right to put whatever drugs into their bodies they want, and so I am against the FDA’s mandate for drug efficacy. But I’m more ambivalent about regulating drug safety - especially in areas where use of drugs can affect others, such as antibiotics or drugs that can cause psychotic or aggressive behavior. But I wouldn’t have a problem with the FDA if it was turned into a federal testing and certification agency that provided information about drugs to the public - and even mandated drug labeling for known risks. That strikes me as a reasonable compromise.

If you really want to understand how a libertarian society might work, you have to understand all the other mechanisms available in the market. For example, the role that private insurance plays in mandating safety - an insurer might offer a lower auto insurance rate if a car has certain safety features or has passed non-governmental crash testing, and this will provide a market advantage to manufacturers who make safe cars. Many industrial insurance policies require that electrical equipment have UL certification or CSA certification, and none of this is government-mandated.

And of course, tort law plays a big role here - In a libertarian world, GM would still be recalling its vehicles at huge expense, since the government isn’t driving that choice - the prospect of multi-billion-dollar class action suits is.

20

Don’t libertarians assume some vague savings in government “waste” through elimination of services that don’t fit their worldview?

“If we get rid of welfare, we’ll have plenty of money to fund the necessary stuff” says the libertarians I’ve talked to, here and on other boards. Isn’t that the case here?