The problem of personal responsibility

[gurdonark]

sushimonkey posted an article about the fellow in New York who has filed suit against the fast food chains, on the theory that his obesity and related health problems result from too many high fat fast food meals. The topic got me thinking about the problem of personal responsibility. In this time when everyone seems to be at one pole or the other, I wonder if it's time for a little moderation.

The 20th Century brought to us all advances in social and medical science that helped us realize that different factors in one's distant and immediate past--a childhood, a chemical imbalance, extenuating circumstances--can drastically affect one's behavior. This was not an entirely new concept. The law had long recognized, for example, the difference between an insane killing (a non-crime), a murder, a manslaughter (killing with some, but inadequate, provocation) and self-defense. But as the effects of advances in psychology and sociology seeped into the legal system, the way law happened began to change.

The "hallmark" of the change in the notion of responsibility might well be Clarence Darrow's closing argument in an early decade of the last century in the Leopold and Loeb case. Mssrs. Leopold and Loeb were reasonably affluent young men who murdered a child just to see how it felt to kill. Both were convicted, ultimately, of the murder, in a time when the death penalty was liberally applied. Clarence Darrow got them off with a life sentence, though, with a closing argument still cited in textbooks. Darrow's theory was essentially that society had made those boys what they were. This was an enormously controversial jury decision, and sparked a societal debate which continues today.

A related phenomenon had economic consequences which gave rise to some of the current culture of "responsibility bewailing". "Tort" law is the portion of the law which deals with civil wrongs, that is, things not arising from contract. A person who carelessly runs over one with a car, for example, has committed the tort of "negligence". In order to protect themselves against tort claims, businesses buy liability insurance. Consumers often buy renters' insurance or homeowners' insurance for the same reason.

Most of the law applicable to "tort law" is judge-made law, that is, "common law". Tort law evolved a great deal during the 20th Century. One way in which it evolved was that plaintiffs were no longer so strongly penalized for their own carelessness. In an earlier time, a plaintiff who was negligent at all could not recover from a negligent defendant. Modern tort law started to use "comparative" negligence, which uses concepts of relative fault and partial awards when both parties bear some blame. In addition,
the common law developed additional concepts, such as the idea that a defective product can be sued upon even without showing carelessness ("product liability law") and imposed a number of additional duties to be careful upon businesses. The 1940s through 1960s brought a wave of consumer legislation, permitting consumers to insist upon quality products, and to sue with less proof than the common law might have required.

Enterprising lawyers soon began trying out a myriad of legal theories, to see how far the law could be stretched. The 1960s and 1970s saw a host of suits alleging theories of liability totally novel under the law. A few such theories were frankly absurd. Lawyers sometimes won big settlements on less than impressive theories. This fueled a massive, high dollar plaintiff bar.

By the 1980s, a major reaction to these trends in the law arose,
fueled in part by the would-be "conservative revolution" that put Ronald Reagan in office. Insurers and businesses wanted to roll back to a world in which adequate tort and consumer remedies were not available. They used as fodder the exceptional absurd lawsuit which was filed on theories so novel they did not make sense.

One of the most effective reactions by the insurance industry was the funding of non-profits and campaigns which dealt with the problem of "lawsuit abuse". These groups were usually comprised of "John Q. Public" type folks who could look as though they did not have business connections, but who in fact were funded by the industries which sought reform. In a fashion that might be called Enronesque, some carriers created "liability insurance crises" in some states. Indeed, we have a "created crisis" in the state of Nevada now. A series of "tort reform" measures were introduced to "remedy" the problems. For example, in California, no matter how devastating a person's injuries, the amount of pain and suffering that person could recover in a medical malpractice matter was "capped" at $ 250,000. The "cap" was not inflation indexed, so each year it becomes "worth" a little less, given the time value of money. Our president now wants to make this legislation nation-wide.

A related "personal responsibility" movement advocated longer prison terms and criminalization of more offenses. The result is that we now have the highest incarceration rate in our history. At the same time that some in our society bewail the lack of personal responsibility, we place people of color in prison at disproportionate rates to the offenses, while members of the white majority statistically get shorter sentences. Apparently, "personal reponsibility" does not run to equality of treatment. Meanwhile, our prisons remain places in which inmate abuse by other inmates is commonplace. The value of "personal responsibility" to treat prisoners humanely is never addressed.

I frankly find myself out of sympathy with both sides of this debate. I believe that people should have broad consumer rights to
remedy things that are wrong. At the same time, the free-wheeling "file a suit about anything, it might be a tort" approach frankly disquiets me. For some time, California law was evolving doctrines which awarded punitive damages when all someone had done was break a contract. I am glad this trend reversed, as a haywire "lottery" style legal system is bad for everyone.

I find myself discouraged when people say one thing, but they are really saying something else. Lobbyists and activists shout lawsuit abuse, but the medical malpractice reform movement really means "we're going to cap the damages awardable to even people who will experience 60 years of mind-wrenching pain". The tobacco industry misled Congress, smokers, and courts for years, and yet still beats the "personal responsibility" bandwagon on the theory that altho they were not being candid in the 1960s, the surgeon general was being candid. At the same time, when I see the plaintiffs' lawyer bar spending huge sums of money to protect the right to seek massive (large fee-paying) tort recoveries, and yet ordinary consumers with small cases can't get legal help, I think that the system is broken. Cases like the "fast food" suit I mention above just bug me deep down, although every plaintiff is different, and who knows? One lobbying effort by the insurance industry was the McDonald's cup case, in which the elderly woman won a high five figure verdict after being scalded with coffee. Misinformed activists tried to paint this as a failure of the legal system. In fact, the evidence at trial showed that folks at the food chain knew of the potential for a problem, the problem was solvable, and the woman got third degree burns from the heat in the coffee. In essence, a decision had been made to heat the coffee too high, even though it posed a risk, for convenience's sake. This is what negligence and products liability law is for; the award amount was a bit high, but not ridiculous. What was ridiculous was the way that our press allowed lobbyists to plant and respin this story.

Leaving aside the legal system, though, we do have a cultural challenge. We have a culture in which the concept of "standing tall" for one's choices is no longer required as a moral idea. This runs across the spectrum. Business people cook the books, because their bonuses reward them for doing so. Accountants do not make them state the books properly, because only cooperative accountants get their auditing contracts renewed. Parents, usually dads, justify their non-support of their children upon anger at the other parent. Cycles of abuse cause parents who should not even be parents to abuse their own children in turn. Nobody is required to "follow the rules" in traffic matters, because everyone is in a huge hurry. Violence against spouses and significant others occurs routinely, because we have a culture in which all sins are justified by passion.

The problem, though, is that instead of a real national dialogue about how we are to change as a culture, we have instead an appropriation of the issue by those with their own agendae. The insurance industry spent the up stock market under-charging premiums to get investment dollars, and now is hiking premiums. Rather than bewailing their own bad "cash flow" underwriting, they now claim, as in Nevada, a "liability insurance crisis" has set in. Religious leaders eager to maintain a contributing basis of discontented folks appropriate the problem for their own agenda. Reverend Falwell was willing to appropriate even the 9/11 tragedy to argue that God was punishing New Yorkers for being New Yorkers. My own state, Texas, has made almost a crusade of trying to impose "personal responsibility", i.e., the death penalty, upon mentally impaired people, ignoring the fact that they do have different culpability. I see arguments from the left, by contrast, that murder is always justified by a non-lethal cycle of abuse, arguing essentially to overturn our concept of manslaughter (i.e., that some killings, while understandable, are not fully excusable) or, conversely, arguments in death penalty cases by prosecutors that no amount of past dysfunctional life should have any effect on sentencing. Politicians, on the right and left, shape their positions on these issues so as to please campaign contributors.

At root, though, there is a crisis on both the right and left. Neither side of this debate has a real view of what we are seeing. What we are seeing is the loss of a sense of proportion in this country. We are seeing the loss of a notion of "fair play". I like that book "Goodbye, Mr. Chips". One point that Hilton makes in the book is that the real purpose of education is a sense of perspective. I think a sense of true perspective is what folks lack today. It's just everyone for him/herself, and damn the torpedos.
I think that this problem is a spiritual problem, or, for those uncomfortable with that word, a values problem. I see it as a problem for the writers, for the theologians, and for the ordinary people. I am all for personal reponsibility, but I wish both sides of this debate would show some responsibility sometimes.

Comments

[coollibrarian.livejournal.com]

well said!

[gurdonark.livejournal.com]

thank you!

Right on!

[lonestarslp.livejournal.com]

Doesn't it seem as though everyone wants the otherguy to take personal responsibility? However, I don't need to because naturally I have a reasonable explanation for my behavior. Doonesbury had a great cartoon on the subject.

Re: Right on!

[gurdonark.livejournal.com]

I loved that cartoon. Of course, all my problems in life are the fault of my siblings, who were dressed better than I was.

Re: Right on!

[lonestarslp.livejournal.com]

Raised in Brown The perfect title for your memoirs!

Re: Right on!

[gurdonark.livejournal.com]

That is a good title for the first volume. The second volume will no doubt be "They liked them better".

I'm eager to see, by the way, how these first few weeks of your new career go. I think it's a fab idea to journal it down!

very well said!

[voodoukween.livejournal.com]

i feel the same way

Re: very well said!

[gurdonark.livejournal.com]

thanks...always hunting for balance...

Hmmm...

[gregwest98.livejournal.com]

So, that story about Cessna and other small-plane business stopping production of light planes for a time due to laysuits from unreasonable lawyers may have just been an oversimplification by some group with an agenda?

Life is so complicated.

Re: Hmmm...

[gurdonark.livejournal.com]

Every time a defective product turns out to be defective, that doesn't mean a lawyer is to blame. Cessna and those folks had lots of other market dynamics, like high prices of manufacture, before we even get to liability.

There's a good reason lawsuits drove the corvair off the market, for example.

Re: Hmmm...

[gurdonark.livejournal.com]

love that guitar icon!

[holyoutlaw.livejournal.com]

What a great essay. Mind if I link to it in my own journal?

I don't remember where I read these statistics, and they're from a few years ago. But it's not just "greatest incarceration rate in our history" but "highest percentage of population incarcerated in the world". And we have (or had) a greater percentage of our black male population in prison than South Africa did under apartheid.

HL Mencken had an aphorism about ethics that requires a double take. I think it goes "The ethical man regrets the discreditable action, even when it works and he has not got caught."

And I'm glad you know the "real" details about the McDonald's case. So many people would rather believe the urban legend of it. When I've tried explaining it, most people react as if I'm a dupe of McDonald's lawyers or something.

This whole thing reminds me of "real politics is top to bottom, not left to right." (I don't remember where I got that one.)

[gurdonark.livejournal.com]

Why thank you, very flattering. of course you may link.


I love the Mencken quote, and I love the top to bottom. One of the few ways I am a bit conservative, also, is that real change is not always political or governmental....

[amatrixangel.livejournal.com]

Thank you for this entry, it makes a *good* read!

I have a question, if you don't mind answering. It's specifically about the O.J. Simpson case. We have a bit of mix of British and U.S. 'style' laws in Australia. Though, in the main, our system is based on British common law. Here, it is impossible to sue someone personally in relation to a criminal offense (that is, to create a civil case out of it).

Now, from my understanding, OJ was found not guilty for the murder of his wife and set free. The family of the murdered woman then sued OJ and, I believe, won the case. How is this possible under your laws? I mean, didn't the family litigate for the murder of his wife and he was found guilty? Then he had to pay out 'x' amount of dollars? I don't get it? How could you be found not guilty in a criminal trial then be found guilty in a civil case for the same offense? Or am I off the beam here? What were they actually suing for? Surely, if a criminal court has found you not guilty, wouldn't that alone be enough of a defense in a civil case? If not, why not?

[gurdonark.livejournal.com]

The difference is burden of proof. In a criminal case, the state brings the charge, let's say, murder. The state must prove beyond a reaonable doubt the elements of the charge.

In a civil case, the burden of proof is much less, preponderance of the evidence, also known as "more likely than not". Many criminas are acquitted--in our system or yours--even when it is more likely than not they did the crime.

I do not want to give legal advice, as it's a bad idea and I'm not qualified to do so in Australia. Still, even there, I believe that a civil litigant could sue for battery causing death even after an acquittal on the criminal case. The trial would take place before a judge, not a jury. But I suspect it could be done.

[amatrixangel.livejournal.com]

Yes, thanks for that. I've never heard of such a case here (though I could be wrong of course). I still find the whole thing bizarre. I understand what you're saying re burden of proof in the two systems but really, to be tried and found not guilty and then 'tried' again and found guilty just seems, ....well, ludicrous...(?)

[gurdonark.livejournal.com]

Here, such trials tend to happen only with (a) wealthy defendants (b) insurance matters or (c) disgruntled family members.

A recent such trial in civil court caused the authorities to re investigate a criminal matter in which no charges were filed, and charge the civil defendant as a criminal D.

[geisa.livejournal.com]

"all the whiskey, weed and women have the upper hand"

-hank williams III

i have no idea what that has to do with this post, because i didn't read it...but that's just the song that happens to be playing right now!!!

[gurdonark.livejournal.com]

personal responsibility, indeed

pt.1

[geisa.livejournal.com]

ha!!! funny how my comment "kinda" played in there without me even reading the post!!!;)

but after reading the post...i'm still stayin' with the "whiskey, weed and women" i think i am less apt to be involved in stock market fraud, tort reform and/or abuse (what a joke), disobeying driving rules, negligence and the death penalty...i won't shoot unless i'm in my home, being confronted with someone else that i "reasonably" believe to be threatening serious bodily harm to my person or...i'm at the 'waffle house' while it's being robbed at gun point (all legal deadly self-defense actions in this state, and i WILL shoot to KILL, well if you're going to shoot...it BETTER be to KILL or you're STUPID and are going to end up BEING killed...see there's logic there, and i'm prepared and REFUSE to be a whiny-ass "VICTIM"!!!) i live in america, what can i say?!! is there something inherently evil about living somewhere that you have to defend yourself?!! always have to be on guard...can never trust anyone or any institution from govt. to business (well, those two are the same) c'mon kids...where's your cowboy spirit...this is america, it's FUN, it's a way of life!!!;)

anyway, i thought the response from the "food industry" in the obese man v. fast food case was pretty funny. i think it said something to the effect that 75% of the food consumed in the u.s. was at home, so are "they" going to start suing MOMS now, ha!!! but i have an idea where they may be going with this suit...i read about the labeling of ingredients, etc., but i'm confused with that one, because every fast food place that i go to has a little chart with calories/fat, etc. shit, some chains use that information as a "marketing tool" of comparison, ie 'subway' sandwichs. but the plaintiffs are going to have to show that the food places named in the suit haved added "something", similar to the tobacco industry suits, into the food in order to get around some SERIOUS personal responsibility issues...as you described. i wonder what that "something" could be, and who has the MOST of "it"?!!;) i mean, are we going to find out, after the fact, that if you cooked down the "secret sauce" from a big mac and add two drops of muriatic acid...that you will get a substance that will give you the EXACT same link with the "gods" as the best chinese rock (heroin) that most users sell their, uh-hmmm, souls for?!! gosh, i love irony. i always thought that light-headed feeling that i got after eating 10 'meximelts' was just some form of spiritual satisfaction from consuming the delectible ambrosia of this great, great land, god bless america...you know.

i doubt they could win this one with anything else...which makes me VERY curious about the discovery in this case, obviously...WHERE and HOW do i COOK THE DRUGS?!! what kind of rabbit does the plaintiff have up his sleeve?!! surely they must have SOMETHING extraordinary?!! some type of convincing, credible, admissible evidence to support such allegations. i am very curious about this litigation. could you just imagine voir dire?! oh god, that would be GREAT!!! "ok, are there any burger king haters in here...ok lady, we'll get back to you. what about people who dislike mcdonalds, ronald mcdonald or have ever had a stale burger from mcdonalds...or felt a funny little tingle in your lower abdomen approximately 30 minutes after consuming any of the products of any chain restaurant named as a defendant in this suit, which you thought was just the expected gas accumulating after consuming such a well-balanced, all-american delicacy" well, they do have really nifty tv commercials and games that provide you with the possibility of winning a million dollars if you "happen" to get the right spiderman cup with your "meal"!!! i could go on and on into the ridiculous...i'm not there yet, really!!!

pt.2

[geisa.livejournal.com]

but, i've passed my limit...so i will close with this remark. i fully understand your very eloquent post. but this country, at it's worst, used to be at least exciting, but it is no longer even that, just boring and obvious. i think this is an inherently corrupt and evil system beyond repair. but hey!!! that's just me. i have not ONE SHRED of credible evidence to back that statement up, HA!!!;)

i read somewhere recently that america is a place that became decadent without ever truly being civilized. a british guy wrote that so don't get mad at me, but i definitely can see how someone could come to that conclusion after studying this country's VERY brief history...and looks at where the u.s. is culturally today...and ponders the possiblities of a future even remotely resembling our "pie in the sky" interpretations of what it was meant to be (see the u.s. constitution) i am SO out of here when i can break the chains that bind me to this land. it's over. and yes, plane tickets will be most graciously accepted.

"by the way, if anyone out there is in marketing or advertising...KILL YOURSELF!!! ...you are satan's little helpers, KILL YOURSELF, KILL YOURSELF, KILL YOURSELF!!!"

-bill hicks

Parts 1 and 2

[gurdonark.livejournal.com]

We do live in odd times. I think, though, that for many of us the day to day is much more humdrum than even the dire predictions or the witty disparagements. I don't see much future in quarter pounder lawsuits, though.

Re: Parts 1 and 2

[geisa.livejournal.com]

yeah...and it's that day to day humdrum "daze" that most people walk around in that has gotten this country, excuse me, always had this country, where it currently is culturally, the united states of self-absorbed apathy!!! or, how about the united states of corporate control of the dumb asses...no, that's too long. OH, i know, the united states of america, inc. yeah...that has a nice little ring to it...not too long and mean sounding yet gets the point (truth) across nicely!!!;)

have you seen any discovery in the fast food case?!! i think people were saying the same thing about the tobacco litigation when it first started...oh, but don't misunderstand me, i realize how much control the fast food industry has over our "government" which includes the judicial system. so, i don't expect any future in that litigation, as well, whether it's credible or not. but then, what if there is a "smoking gun" like in the tobacco litigation?!! where will america eat?!! what will happen to the stock market?!! am i going to have to pay higher taxes and insurance premiums?!! or will i just have to pay $3.00 more for a big mac and sign a waiver form acknowledging that i am engaging in a hazardous activity, releasing the "corporation" of all tort liability?!! YEAH, an arbitration clause for each and every happy meal purchase, praise the lord!!!

oh...i am just having waaaaaaay too much fun with this one!!!;)

Re: Parts 1 and 2

[gurdonark.livejournal.com]

I agree that until one sees the ads in question, the discovery in question and the like, it's hard to say too much specific about the fast food case.

I think at heart, the "responsibility crusade" probably starts with oneself, anyway.

Website you might find interesting

[holyoutlaw.livejournal.com]

You probably already know about this site, but just to make sure:

http://overlawyered.com/

Looks pretty interesting.

Re: Website you might find interesting

[gurdonark.livejournal.com]

Interesting, but I'll bet I can guess where some of the funding comes from!

culpability connection

[nacowafer.livejournal.com]

This is one of my main problems with existence on this plane. The issues you've raised. I understand that in the "real world" I cannot make things as black and white as I would like them to be. However, it is slowly (quickly?) driving me crazy. I continually lament the lack of accountability that litters the landscape. How did this happen? It was not always so. I cannot prove that, but I believe it (with all my heart) to be true. Mostly I see it with parents and children. No consequenses. It is not really surprising to me that children become murderers. They have not learned that there are consequences for their actions. Go out in public and you'll see it million and one times over. Parents yelling at their kids to "stop it!" and leaving it at that (or repeating it ad infinitum) without any action being taken. Ugh. I walk around wanting to shake people. Physically grab them and shake! Maybe there's just a connection loose or something. Maybe it could all be solved with a few lessons in etiquette. Hell, I don't know. It makes me think twice (thrice) about wanting to have children. People need to have some sort of moral framework or everything falls apart. Things fall apart. We're seeing it now. Action (or lack thereof)/reaction...cause and effect. And it's scary.

Re: culpability connection

[gurdonark.livejournal.com]

I liked your comments very much on this point. I'm going to explore a different point of view, but a big part of me agrees with you. I believe,though, that this phenomenon has been bewailed as long as people have been literate. I think that in particular we, who have been raised in a southern culture which can be downright apocalyptic, feel the decline of things about us more than many. I never understood why all those paid-for-air-time TV types needed to make the "end days" stories so darn literal, when the metaphor of what happens when a culture loses focus is so richly before us. As if we need avenging angels and odd beasts to understand turmoil. I guess it helps to get people to contribute, if they know the world is ending, anyway.

I cannot separate the philosophical dilemma you raise, the matter of your heart, from the fear factor/decline to which you allude, which is something outside your intellectual construct. I believe this may be the "difficult year" because you are realizing you must address the one (i.e., what makes this so hard for you as a matter of your emotional well-being) while gripping tight to the other (i.e., your values and your many bright thoughts and dreams). I cannot help you there, particularly as you indicate that you understand somewhat what you nded to do, and just need to get about it, whether it be professional help, moral acceptance, religious search or, as in my case recently, a simple matter of dentistry.

But I will say that I take great hope from the fact that people like you will have children, and will raise them with accountability, and I just don't buy the "why try" approach to life. I never will. Funny, but I don't think, really, that you will, either. Call it a journal-educated-wilddonkey guess, but it's my guess.

Oh, and kudos to you! A year of nacowafer. Well done. Who said you can't stick to anything? Oh, right, that was you. But you did, and you do, and I'm very glad.