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Tort Professor's Tort. This past Spring (2002), a University of Virginia law school student sued a tort professor for an illegal touching. The professor prefaced the contact by indicating to the student that she may like what he was about to do, but he was doing it to illustrate a point. Then the professor proceeded to touch the student on the shoulder. The point that followed was that such an innocent contact in the wrong circumstances might be considered an assault and battery (actually a battery). Sure enough. The student later sued for personal trauma claiming the touching brought back unwanted memories of prior abuse.

The case illustrates two points. First is the idiocy of much of today's litigation. This is a case which never should have been brought if someone were using common sense. Second is the full circle completed by having an inappropriate case brought against a law professor when law schools keep turning out too many lawyers who have the wrong view of the purpose of law in our society. I was both saddened by the case because of its nature, but pleased by the case because the law schools need to see some of the inappropriate litigation behavior which results from today's current attitude towards law and litigation coming to a great extent from law schools.

Need for Judicial Restraint. As mentioned in the discussion about how we have come to have so much litigation (how we got here), one of the factors influencing the increase in litigation is judicial activism. The need for judicial restraint was the subject of a speech by Judge Arthur D. Kelsey of Virginia's Fifth Judicial Circuit on May 6, 2002, part of which was published in the September, 2002, issue of The Virginia Bar Association News Journal (available online at www.vba.org). The article makes several excellent points and is well worth reading.

The Judiciary Committee of the United States Senate and Senator Daschle recently distinguished themselves by showing the depths to which judicial activism has drug this country. Justice Priscilla Owens from Texas was recently rejected by a party-line vote in the Judiciary Committee of the United States Senate. Her detractors said that she was against many of the rights currently recognized under the Constitution, and her record on the Texas Supreme Court was used to show her animosity to such rights. In fact, the various positions with which she sided were to uphold the laws of Texas properly passed by the legislature. She was found by the American Bar Association to be qualified to be elevated to the United States Fifth Circuit Court of Appeals. It was estimated by some that, if her nomination had been forwarded to the Senate floor, she would have been approved overwhelmingly. Yet after the Committee's refusal to allow the Senate to vote on her nomination, Mr. Daschle had the audacity to state that the lesson to President Bush was that he should not nominate unqualified individuals to the Federal Judiciary.

There was nothing in Justice Owens' record to suggest that she was unqualified and everything to indicate that she was qualified. There was little in her record to suggest that she even disagreed with many of the positions of the groups who opposed her. Yet, because of the increasing importance of judicial activism over the last several decades, Justice Owens' nomination was not even permitted to follow the prescribed constitutional track. Article II, Section 2, Clause 2 of the constitution provides that the President, not the Senate, shall appoint, and that the Senate, not the Senate Judiciary Committee, shall give its advice and consent. These perversions need to be stopped, and the judiciary needs to be restrained. The effect of not doing so will be continued degradation of our political and judicial systems and the continuing loss of civility in our country.

More on Judicial Restraint. A recent Supreme Court case has a dissenting opinion by the four Justices commonly referred to as liberal, Justices Stevens, Souter, Breyer and  Ginsberg, which highlights the problems with an activist judiciary. The case concerns the propriety of the death penalty for persons under the age of 18 at the time of committing a capital crime. The Court refused to hear the case and, thus, let stand the sentences. At this time the death penalty for persons ages 16 and 17 is not considered to be unconstitutional.

The basis for challenging the death penalty for persons of this age is the Eighth Amendment prohibition against cruel and unusual punishment. The liberal Justices would have found this practice to be unconstitutional based upon the following:

1.    It was stated that there is a consensus that the penalty for such persons is improper. It was noted that, of the 38 states and the Federal Government which have the death penalty, 16 states and the Federal Government do not permit the death penalty to be given to persons under age 18. This leaves 22 states that do permit the death penalty for persons under age 18, which is hardly a consensus.

2.    Teenagers were stated to be erratic in their behavior based upon neuroscientific evidence developed over the last few years. Thus, they should not be as responsible for the acts they commit.

3.    The practice is said to be "a relic of the past inconsistent . . . with evolving standards of decency in a civilized society."

Even if all of these statements are true, they are not a basis for Constitutional interpretation. The punishment for persons under age 18 is obviously not unusual. It is accepted in 22 states and has at different times been accepted in many more states. As administered, the punishment is not cruel. In fact, the processes normally used in administering the death penalty are very humane, as far as practices go, minimizing any discomfort to the individual. The death penalty has always been accepted in this country. Though there may be a growing trend against such punishment in many states, such is not a basis for judicial interpretation. All of the reasons cited are the types of arguments made for and against legislation, not arguments which should be considered in interpreting the Constitution.

Judicial decisions, especially when interpreting the Constitution, should not be made on those bases for making legislation. The two functions are distinctly different. Some have accepted the enunciation of additional constitutional protections on the basis that our Constitution has endured because it is a living breathing document which can accommodate the times in which we find ourselves. However, this is a completely false premise. Our Constitution has endured for precisely the opposite reason - namely that it is a document which forms a general outline of a government with limited powers and checks and balances. Our society has flourished in the context of a Constitution which ensures personal liberty and provides a means for a legislature to act with some balance from the executive in a manner which can accommodate the changes in society without being constantly hemmed in by a judiciary that hands down immutable rules just because they prefer those rules over others.

Activist judges, like the four liberal Justices, undermine the generality of the constitutional limitations which have allowed our country to grow and change as appropriate to the times.

FedEx Class Action. For a short period slightly more than five years ago Federal Express had a surcharge for fuel costs. Soon after that was initiated there was a law suit which sought damages for people who paid this charge claimed to be improper. Recently a settlement was proposed which is another indication of who really wins with class actions.

As proposed, members of the class would be entitled to a certificate good for one year for services with FedEx that would have a value of the lesser of 35% of the fuel charges incurred or $450.00. The certificate would in no event have a value of less than $1.00. FedEx will make the calculations for those persons who had a FedEx account during the covered period. For those persons who used FedEx, but did not have an account, they must provide all of the substantiation to receive a certificate.

A little mathematics shows how little benefit this supposed remedy provides to some protected people. Using an average FedEx package price of $14.00, the average fuel surcharge would have been $0.28. At these amounts, in order to be entitled to the maximum of $450.00, one would have needed to make 4,592 shipments. In order to process the number of bills for these shipments, a clerk making $10.00 an hour (not considering any costs for overhead or benefits) would have to process just over 102 bills an hour to break even. Anyone who did not have an account, but made shipments and is covered by the class, cannot afford to provide the proof for a recovery. Anyone who did have an account cannot afford to do what is necessary to insure that FedEx has provided the proper value of the certificate. I am not suggesting that FedEx would not do this properly, but only that one could not afford to do an independent evaluation.

However, if you have a problem with this supposed settlement, it is not worthwhile objecting. In order to object, one must agree to appear in Chicago for the hearing, not just file a written objection to be considered by the Court.

For all of this, the class representatives are proposed to receive $10,000.00, and the attorneys are proposed to receive $3,282,000.00. If it were your choice, would you be willing to pay that amount for such a benefit?

Malpractice Boomerang. We have all been reading recently about doctors' malpractice problems. Some doctors have left states where tort liability chances are high and, consequently, malpractice premiums are high. Some doctors have gone on strike in different states or have changed practice areas.

Well, the problem created by lawyers chasing dollars is now coming home to roost. Recently  the Reciprocal Reliance Risk Retention Group was placed in receivership by Tennessee. This Group is a reinsurance company. The problem has been created by medical malpractice claims, and the Group is trying to raise additional capital in order to remain viable.

The "boomerang" is that the Group is also the primary reinsurer for American National Lawyers Insurance Reciprocal ("ANLIR"), a lawyers malpractice carrier. Lawyers insured by ANLIR are now having to look closely at their malpractice choices and may have to change malpractice carrier - Sweet justice FOR THE PERPETRATORS OF THE LITIGATION LOTTERY.

There are many attempts to justify the number of medical malpractice claims and the huge awards. Someone who has a serious problem which has arisen from malpractice should be properly reimbursed. However, much litigation is brought merely because a person has not gotten the desired result even though there has been no malpractice. If there is a 95% chance of a procedure being successful, there is a 5% chance of a procedure not being successful. With the encouragement of lawyers, however, people believe they should NEVER be in the 5%, even if nothing was done wrong, or that, regardless, someone else should pay.