I agree. The law authorizes only the attorney general to crack the whip, and limits that prosecutorial discretion with an blanket affirmative defense. Who wins here?
The state government gains the ability to selectively harass west coast tech companies. Since west coast tech companies are perceived as left-wing institutions, state legislators probably anticipate that media coverage of the attorney general harassing them in court will poll well with voters in Ohio.
This is toothless. Without a private cause of action available to the consumer, prosecutorial discretion means offenses will go unpunished based on political winds.
Many of the issues raised by your comment are the result of civil procedural rules. These rules are not intentionally designed to postpone rulings on the merits, and instead were built on historical understandings of how a dispute should be fairly addressed: 1) communicate problem to adverse party 2) adverse party responds 3) fact-finding 4) written arguments aimed at resolution 5) trial by judge/peers (if necessary).
I don't believe that moving #4 (or even #5) earlier in the process maximizes the possibility of a logically/legally sound conclusion, which IMO, is the purpose of the justice system. Then again, your comment has identified speed as a priority, not a thorough examination of the merits.
If the procedural rules don't offend you, then we might just be talking about expensive lawyers. Not all lawyers are expensive.
>We do not have equal access to our judicial system in the United States.
I agree, but I think we can be more specific.
Criminals (or those accused of a crime) are constitutionally guaranteed an attorney. Civil plaintiffs/defendants, by contrast, have no such right. The anecdotes and experiences of HN users overwhelmingly describe the civil side of things.
Civil lawsuits, IMO, should carry no guarantee of counsel at the constitutional level. Imagine if they did: free lawyers mean frivolous lawsuits and over-burdened courts. But, I don't think anyone is actually clamoring for such an arrangement.
So, specifically, how can we more efficiently allocate limited legal resources to ensure that the average civil litigant is not disadvantaged by a wealth disparity with his opponent?
Well, what's the perceived disadvantage to a resource-poor litigant? What's the perceived advantage to a resource-rich litigant? Good facts make good cases much more frequently than good lawyers make good cases.
An interesting thought experiment along the lines of resolving this inequality is making it so that sides can only fund their civil case through a fund that both sides contribute to but both sides get an equal share. This means in order to frivolously sue someone, you have to be willing to fund their effort to defend against you.
It probably breaks down a lot in cases involving multiple litigants (let alone class actions), but it is an interesting idea.
"Hi, yes, I'd like to sue Apple for millions, and since I'm an unemployed armchair lawyer, I can make sure it takes a long while and a lot of tedious aggravation to beat me. Also, since I'm suing pro se, Apple would be paying me a salary equal to whatever their legal team makes for the duration of the trial. Or, you know, I'd be happy for Apple to just give me $100,000 to settle."
Then repeat for every wealthy corp you can think of. A loss doesn't hurt you, because you're still getting paid from the joint legal fund.
Alternatively, Apple could give a lawyer a million dollar gift, with the understanding that he'll defend them in any lawsuits for the next year while charging minimum wage. Then, Apple would be happy to pay an equal amount of minimum wage dollars toward the other side's legal expenses.
The former issue is a valid concern, but I actually think combined these almost form a resolution to the issue.
I don't think BigCorpA could get away with simply gifting a lawyer a large sum of money to work on cases with arbitrarily low costs, but I do think they could have contract lawyers who work for the fee their opposition works. These small frivolous cases run by a person representing themself should not require millions to get shut down as being such (and if they are that's a different legal system dysfunction), but there'd be more than enough cases where the amount spent is large and being on deck for those would be worth it to a good lawyer. Not to mention cases where the company thinks upping the spend is worth it to defend on something real and important.
Note that I don't think your scenario is actually all that different from the current reality, other than the idea that your opposition is funding you, but there are almost certainly arrangements where this would not be the case.
Also, if your case is dismissed as frivolous I think you would not get any of the fund regardless.
If Apple knew it was a frivolous lawsuit that it barely needs to defend itself against, then it probably wouldn't put any money into the fund and just defend itself with half of whatever you put into the fund.
Maybe I'm reading the parent comment wrong, but I assumed this system would allow for unequal funding between the two sides. So if you think it's a frivolous lawsuit that you can easily win you would just let the other side fund the entire endeavour.
The problem knodi is raising is that pro se litigants don't have the same cause as normal ones, because they aren't paying for lawyers.
A solution to this might be to say that any money not sent on the case is given back to the person who payed more, so it's not an avenue for making money.
You'd need to also disallow pro-se litigants paying themselves a fair wage out of legal costs, in order to defeat this clause of my evil scheme: "Apple would be paying me a salary equal to whatever their legal team makes for the duration of the trial".
Which is maybe not an unreasonable solution, but it strikes me as fraught with unintended consequences.
it makes frivolous lawsuits even worse. It means if i bring a lawsuit against a major corporation the either have to put up a very cheap defense so that i dont get much money for my lawyer or if they go all out then i have the money to hire top lawyers and drag the frivolous case out. It would make patent trolling even worse because lawyers would just sue big companies so they have work for a few months that is guaranteed to be paid by the corporation
Well, in my premise there is no need for agreement. If side A thinks it's worth $N and side B thinks it's worth $M, they each get ($N-$M)/2 to work with. This asymmetry is what makes it a bad choice to try to overpower a less wealthy opponent by simply outspending them.
I haven't really thought through the consequences of requiring some kind of agreement in advance, but my instinct is it couldn't really work just because being obstinate would be heavily rewarded.
What about a right to a defense attorney in a civil case? That way you can't bring frivolous suits. That's actually exactly how the criminal courts work too. This seems too simple of a solution though, are there good reasons not to do this?
Everyone has a right to a defense attorney, just not a free one. Are you suggesting that the government (which is to say, taxpayers) fund the legal defense of everyone who gets sued in America? Including, say, OJ Simpson's civil suit?
To be fair, when somebody sues somebody else, it's not like it's a private affair, the suing party is actually asking the state to use it's power against the sued party.
It's not crazy to think that before the state should use it's power against you on behalf of another citizen, it's up to the state to ensure that this action is lawful and correct to do (which might require supplying you with an attorney).
I think so. I believe he should 1000% have been appointed one in the criminal case had he not been able to pay for one and he won the criminal case before he was sued.
The winning party should be able to apply to the court for a costs order once the case has been decided, and the court can decide whether their reasonable costs should be borne by the loser.
Basically, some rules were established that allowed patent cases to be heard lightning fast in Texas' Eastern District and generally in favor of the plaintiff because the patent trolls knew these different rules for presenting arguments better than defendants did and abused the system.
"Ward’s rules unleashed what became known as the 'rocket docket.' In his first year on the bench, Ward heard 5 patent cases. In 2006 his docket had 87. 'I did not anticipate that there would be an explosion of lawsuits,' says the now-retired judge."
"Yet Marshall soon gained a reputation the judges may not have welcomed: it became known as a plaintiff’s playground, a place that frequently handed out tens, or even hundreds, of millions of dollars in damage awards. In 2006 the New York Times reported that of the patent cases that went to trial in Marshall, jurors ruled for plaintiffs 78 percent of the time, far more than the national average of 59 percent. From 2001 to 2006, plaintiffs prevailed in eighteen straight verdicts in Marshall."
Note the paper's definition of medical error:
"Medical error has been defined as an unintended act (either of omission or commission) or one that does not achieve its intended outcome,3 the failure of a planned action to be completed as intended (an error of execution), the use of a wrong plan to achieve an aim (an error of planning),4 or a deviation from the process of care that may or may not cause harm to the patient."
This disclaimer needs to be included in any conversation about this study. In the same week that John Oliver ranted on the dangers of misleading scientific studies[1] we see headlines like "Medical error in hospitals is the third leading cause of death in the U.S." with no mention of the fact that this study qualifies an "error" as anytime a doctor isn't a perfect healing machine.
Is it? Those all seem like pretty reasonable types of error. Ultimately they have to have contributed to the death of a patient to be included. If one of those things contributed to someone's death, I don't think i'd hesitate to call that a 'medical error'.
I struggle to see how there are any deaths inside a hospital that don't fall into this category. E.g. a cancer patient on chemo therapy who doesn't make it would seem to qualify.
Realistically I assume this means that they count whatever they want as medical error, with no good rules.
I don't think your example would qualify unless a real error was made e.g. the chemo killed them so there was a planning error in putting them on chemo. The truth is that many people with cancer will not survive. In those cases, chemo is not about saving their lives, just extending them.
You're saying what it should be but the parent comments are talking about what it actually says. Specifically, "one that does not achieve its intended outcome".
I'm arguing that the "intended outcome" isn't always complete recovery. If a patient with terminal cancer dies, that doesn't necessarily mean that the chemo didn't achieve its intended outcome.
In every other way they are not like people. They are neither mortal nor corporeal (in the sense that a human body can be imprisoned or damaged). They can feel no emotion and are not subject to disease. This is important because humans are limited in myriad ways that corporations aren't and by giving corporations human rights the balance of power between actual humans and corporations tilts to the latter.
For example, while they can break the laws like people, corporations are not punished the same. When was the last time a corporation was "executed" (e.g. corporate charter revoked)?
But, in all fairness, that's not their primary purpose, it's merely a side effect of their overall utility. Most people in most corporations are decidedly not criminal, and they don't behave as criminals.
This isn't a strong argument to me. Student debt might not be collateralized the same way mortgages are (i.e. there's no house to repossess), but student debt is still an asset on a bank's book. If anything, student debt default seems to me more troublesome, as defaulted debt without collateral is more damaging to a balance sheet than debt with collateral.
I think you are missing that the many (most?) student loans in the US are either made by the government (post-2010 direct loans) or are guaranteed by the government (pre-2010 guaranteed loans):
If the student defaults on a direct loan, the government is the one not being paid. If the student defaults on a guaranteed loan, the government pays the loan holder. Everyone wins! Except the for the credit blemished student and the US taxpayer, that is.
