Robert (gurdonark) wrote,

The problem of personal responsibility

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.
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