Man Without Qualities

Saturday, February 22, 2003

Soaking Them

Some years ago I found myself in discussions with a federal court of appeals judge about whether punitive damages should be allowed in certain asbestos injury cases. Some states in the appeals circuit clearly did allow punitive damages awards but one state's law (the state in which the case we were discussing was then pending) seemed not to allow punitive awards.

As it happened, the major source of funding for all actual and punitive damages in asbestos cases brought in the states included in that federal appeals circuit was a common trust that had a determined, finite amount of money in it. If punitive awards were allowed, the common fund would be drained by large punitive awards before some plaintiffs with actual damages to their lungs even discovered what had happened to them - at which point there would likely be nothing left to compensate them for their actual ills and scarred lungs.

The federal appeals court had already tried asking the relevant state supreme court to clarify the matter, but the state court refused to answer the question. In such cases the federal courts are generally supposed to guess what the state supreme court would do with the question if made to decide it. After much indeterminate legalistic head scratching, the federal judge tried a more practical approach. He personally knew every member of the local state supreme court (it was a small state), and he said:

"Look, every other state in this circuit is allowing its residents to get punitive damages, which will drain the trust and screw future plaintiffs. The question we're considering is whether, knowing what the other states are doing, our state supreme court is going to restrict the citizens of this state to actual damages while the residents of other states run off with big punitive damages? We're just being overly subtle and therefore stupid. There's no doubt what the answer would be if the issue were put to that supreme court in that way. The court would say: SOAK 'EM! SOAK 'EM!"

The federal court therefore decided to allow punitive damages. The wisdom of its decision was subsequently confirmed when the state supreme court actually decided the issue - reversing its own fairly clear but somewhat ambiguous precedent to reach that result. The horror of the decision was also confirmed when the trust was quickly drained by large punitive damages awards.

If the trust had been governed by law common to the states in the circuit the question would probably have been decided the other way: punitive damages would have been prohibited (or subordinated) to ensure that actual damages awards could be paid in the future. Prior to 1938 the federal courts probably would have decided the matter that way, under what was known as "federal common law." Indeed, a dissenting judge in the asbestos case wanted to revive federal common law for this reason. But the 1938 Supreme Court case Eire v Tompkins and its descendents pretty clearly ruled that out.

I think of my discussions with that federal judge every time I see a case in which some state court awards a huge damages claim against some out-of-state interest: manufacturers and insurance companies, especially. The overriding interest is so often whether imposing liability will bring money into this state.

That is, in so many cases the state court's guiding legal principle seems to be: SOAK 'EM! SOAK 'EM!"

UPDATE: I'm reminded by an astute reader to emphasize the role played by the trial lawyers bar in distorting the purposes of damages awards, and that that bar is most handily represented nationally by Senator John Edwards.

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Thursday, February 20, 2003

Scenes Of Clerical Life

A state court in Boston has now rejected an attempt by the Catholic Archdiocese of Boston to use the First Amendment to shield it from more than 400 lawsuits claiming sexual abuse by priests. The Archdiocese argued that the separation of church and state prevented civil courts from making judgments on how it supervised priests:

Superior Court Judge Constance M. Sweeney ruled that the lawsuits should proceed toward trial because the cases will not delve into religious principles, such as church doctrine, but the handling of allegedly abusive priests by their superiors. To accept the church's argument, Sweeney wrote, would be akin to granting the church blanket immunity from civil lawsuits. ''If the court were to recognize the defendants' sweeping church autonomy doctrine ... the result would be that church representatives could exercise all the rights and privileges the secular law affords yet not be burdened by any of the essential civil laws that protect the safety of all members of society, particularly children,'' she wrote.

Judge Sweeney's ruling is apparently based on her finding that a civil court may impose a "reasonable care" standard on a church hierarchy the way the state may impose a "reasonable care" standard on a corporate board of directors, but may not stray into religious matters - such as determining whether the Archdiocese wrongly ordained or failed to "laicize" the priests. But this grossly overstates the degree into which a civil court may entangle itself with church affairs. For example, the Supreme Court has determined that the First Amendment includes 344 U.S., at 116:

[A] spirit of freedom for religious organizations, an independence from secular control or manipulation - in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.

"Reasonableness" standards are objective standards determined by weighing costs against benefits. Judge Sweeney seems to think that such a balancing can be effected on secular factors alone. That is grossly wrong. A religious administrator must weigh both the religious and secular costs and benefits of any decision. Secular risks must sometimes be taken to save souls, which (within the precepts of the religion) are invaluable, and secure other benefits seen (by the religion) as not of this earth. But a civil court cannot take spiritual benefits into account. Judge Sweeney's approach therefore requires a civil court to second guess the administrator or religious organization by conducting the court's own cost/benefit analysis while assigning a zero value to any religious benefit the decision may have. In other words, under Judge Sweeney's approach religion and spiritual benefits are officially and expressly determined to be worthless as a matter of policy by civil authorities.. It is hard to imagine a ruling more inconsistent with the First Amendment.

Whatever "reasonableness" means in this case, there are certainly people who are incapable of reliably providing "reasonable" supervision. Judge Sweeney makes religious groups run by mystics who spend all their time in religious contemplation - to the exclusion of reasonable matters - now mere fodder for the tort bar. The civil court will now take it upon itself to determine when a member of the clergy is too old or infirm to occupy his or her office while providing whatever the court deems to be "reasonable" supervision of the flock. No more wise old rabbis or parsons or eccentric dottering Anglican ministers, nearly blind and plagued by creeping senility but nonetheless holding on and dispensing periodic jewells of wisdom and experience. Judge Sweeney says they don't have what it takes to fend off the tort lawyers.

By way of background, the issue here is not whether an individual member of the clergy can be held liable for his or her own acts. The question is whether or when the clergy's religious organization - in this case, the Archdiocese - can be held liable. Judge Sweeney has held that the organization can be held liable if it was merely negligent in supervising offending clergy. This case involves no claim that clergy members have any religious right to abuse their charges, so recent Supreme Court decisions upholding generally applicable laws not aimed at religion which have the effect of restricting religious practices (such as legal prohibitions on drugs used in religious services) are not applicable.

The amounts of money involved are large - and some organizations, including that Archdiocese, may soon be forced into bankruptcy. The whole affair has been compared to the tobacco lawsuits. One plaintiff attorney noted that Judge Sweeney's decision ''puts the church in the same shoes as other individuals and other corporations.''

So it does. That's exactly what's wrong with it.

The church is not a corporation. A church is not created by the state and need not take the form of a corporation, a limited liability company, a partnership, nor any other government-recognized entity - and the state is not entitled to impose what it believes to be good policies of corporate governance on a church. In particular, the First Amendment leaves the state very limited power to hold a religious group liable for failure to exercise any particular degree of control or supervision - and a "reasonable care" standard surely goes far beyond that state power.

The analogy between corporations and churches conceals more than it reveals. For example, corporations selling stock are subject to the securities laws and have the burden of proving that the materials they present to their investors is "true" - but it would be absurd to argue that the First Amendment allows the state to require a religious body to prove that the teachings it presents to its members are "true." In other words, the state may not put the church in the same shoes as "other corporations." Also, while members of general partnerships are personally liable for all obligations of the partnerships, the shareholders of a corporation are not personally liable for obligations of the corporation. But while the state could change its corporate law and hold shareholders of a public company liable for corporate liabilities, the First Amendment does not permit the state to hold all Catholics in Boston liable for acts of Catholic priests. In other words, the state may not put the church in the same shoes as general partnerships.

In the history of religion since the Reformation - and Christianity, in particular - the question of who holds what authority and responsibility in a church has featured prominently. Proposed answers run from centralization (exemplified by the Roman Catholic Church) to atomization (exemplified by some Evangelical sects). Other authority structures feature bishops, church councils and congregational elections, each with varying degrees of asserted secular and religious authority. And, of course, there are distinct authorities within church entities - an abbot's authority over a monastery, for example.

The religion clauses of the First Amendment take all American governments out of the business of regulating or structuring the religious or secular government of religious bodies. It is often said that the First Amendment imposes a "wall of separation" between church and state.

Further, the point of the Boston lawsuits is to seize church property. The Supreme Court has quite clearly held that matters of ownership of church property are to be determined by church authorities - not civil courts. It is entirely open to the members of a religious group to hold all church property as they see fit. They could hold it severally - that is, each member of church could be declared to own a ratable but separate portion of the church property. Or the church could determine that one individual - such as a bishop - "owns" all of the church property. It should follow that church property (as opposed to the personal property of particular members of the clergy) is not available to satisfy a judgment based on the acts of one of its clergy, no matter how high, unless the church has agreed to make that property available. That state courts may adopt "neutral principles" to determine church property disputes is not to the contrary, since that doctrine concerns rules for determining what churches have chosen to do with their property - not what they are permitted to do with it.

In short, Judge Sweeney's decision is a catastrophe for religious freedom in the guise of vindication of victims' rights. The Archdiocese may not appeal this decision, since it says it only raised the issue to satisfy its insurers. But if the Archdiocese seeks bankruptcy protection, the Archbishop may find himself in the uncomfortable position of a trustee with civil fiduciary duties to the Archdiocese's creditors - fiduciary duties that require him to raise such arguments with full force.

Will the advocates of Judge Sweeney's approach relish the inevitable motion to replace the Archbishop with a trustee in bankruptcy if the Archbishop fails to fully defend the Archdiocese's assets?

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Tuesday, February 18, 2003

Witless In Seattle

The Man Without Qualities and family were in Seattle over the weekend, visiting old friends. We - including a total of four eight-and-under children - took in the Science Museum located in the park around the Space Needle. While we were inside the Museum exclaiming at the device that permits one to create huge soap bubble membranes, a fully functional beehive and, of course, the picnic table arrayed with various edible insects, the antiwar protestors were massing outside for their march into the city. The protestors began to assemble after we entered the museum and the last of them had just trotted off after we came out, leaving the enduring park population of popcorn, doo-dad, hotdog and cotton candy vendors making surprisingly (at least to me) skeptical comments about the demonstrators. One wondered if, perhaps, the demonstrators didn't buy enough for all the ruckus they made, while displacing the more reliable family purchasers of such victuals and paraphernalia.

But we rode the Monorail into their midst, since Seattle Center - the zone immediately surrounding the southern Monorail terminus - seemed to be a point of regrouping. Many of our fellow passengers on the Monorail could be heard repeating what a few of the park vendors had also suggested - that there were north of 30 thousand people in the demonstration. I'm not sure where that number came from, although some of the people repeating it said it came from the "demonstration organizers." In any event, it was clearly absurd. The Man Without Qualities grew up in a town of a little more than 30 thousand - and there were certainly far fewer than that on the Seattle streets. Later news reports placed the number at between 10 and 20 thousand - about half of number the protest "organizers" claimed. There was some - but not much - drizzle.

The protestors carried utterly predictable, pre-printed signs and chanted utterly predictable pre-processed slogans. There seemed no strong emotion. The entire affair resembled not so much a popular outpouring of outrage or concern as something lifeless staged for a made-for-TV movie on a tight budget, close-ups to be mostly avoided.

This form of protest seems odd to me. Printed placards, chants, 60's nostalgia, the obvious staging for television news effect. The form of protest seems to overwhelm its intended content, and the strongest message conveyed was simply:


Where there is no better means of communicating one's message, the restrictions and implied message imposed by this form may be overcome. It is in just such circumstances that the form developed and remains vital. Where, for example, the government controls most means of communication - the Shah's Iran or the later Soviet Empire, for example - how else can one communicate effectively? Even where there is a free flow of information, one can see a role for such protests where the media simply fails to present one's argument to the public. But these protestors' message and arguments are already and constantly disseminated in many ways: from Senator Levin's petards to the squirrelly reporting of National Public Radio to the sly, self-serving omissions and distortions of Dan Rather and most of the rest of the liberal media. In such circumstances the form seems to convey yet an additional message of the protestors' deliberate misconception of the society in which they live and their inflated and self-mythologising opinion of their place in it.

UPDATE: Tim Blair posts interesting comments. And more from Angela Bell.

FURTHER UPDATE: This San Francisco report squares pretty well with my Seattle experience as far as the inflated crowd size goes.

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