1. Why be concerned about a lawsuit designed to make the defendant go broke from legal fees? I don't think that anyone claimed that was the case here.
2. There is no "loser pays" provision as a general rule in the US. In addition, this is evidently a settlement, and as part of the settlement, MS has agreed to pay the attorney's fees of the class.
3. There will be no appeal. It is a settlement. Microsoft agreed to it.
4. The settlement apparently needs to be approved by a judge still. It will become final at that point. The judge will need to approve the various aspects, including what the plaintiffs get, how much the fees are, and the language of the settlement.
The point of the post was not the answers you gave. The point was that even apparently simple rules require a body of interpretive law to give them meaning.
The thing is that most of the problems you need to hire a lawyer to fix, were made by another lawyer in the first place. Much like bad plumbers.
I have yet to see a client walk in my door who had his problems created by an attorney. Usually, they are created by (1) himself or (2) someone who ran into him with a car or (3) a deadbeat that he made a contract with who won't pay him.
Law isn't inherently complex the way the human body or physics is.
You are absolutely right. I have never come across a statute or case that was particularly hard to decipher. Unfortunately, there are lots of laws, rules, regulations, etc. You cannot possibly begin, even as an attorney, to know more than a fraction of them.
Do you want some sort of Ten Commandments system or something? Let's try that out sometime -- it'd just be mob rule.
Rule 1: Don't steal. 1. What about necessity (need to grab a life jacket from a sinking ship)? 2. What is stealing (picking up a penny from a sidewalk)? 3. What about "borrowing"? (joyriding in a car) 4. Filesharing.
The exceptions start to pile up for even the most "simple" thing such as "Don't steal". Imagine the problems when you get into things like "pay 10% of your income in tax" or "don't pollute".
What about trials? It's simple, after all, just go in and explain everything to a judge who will sort it all out for you. No need to worry about what is fair to present to the tribunal in evidence, or how to establish the authenticity of the evidence. No reason to make a rule to require fairness, so that each side knows more or less what the other side will present at trial. Let's not even get into relevance (Farmer Jones used to bugger sheep, and that's why he should be convicted of cutting down my corn to sell). So obviously, there's no reason for rules of civil procedure.
Certainly, what's good for one community is great for every other community, so we should scrap the notion of Jeffersonian democracy that we've used for hundreds of years and impose top-down rules. That means that people in Buffalo Ass, ND get the same rules and regulations for building that people get in midtown Manhattan. Sure. Great.
Your whole premise is flawed: It would not be good for law to be "simple". Complexity can be a problem, but, for the most part, things work pretty well. It just so happens that sometimes, you need a lawyer.
I think it is highly ironic that tech-focused folks are frequently found bitching at this site about clueless people that do not understand technology (I don't understand why my grandmother is unable to use Unix from the command line, I mean, it's not like rm -Rf/home/grandmother/recipe/molassescookies/ is hard to remember or anything). For giggles sometime, post "I use Macs/Windows because they're easy" sometime. See what you get.
Then you see an enormous amount of bitching about "wah, wah, wah, the law is soooo complex and it shouldn't have to be that way, lawyers suck, they get paid too much, wah, wah, wah." Its just simple ignorance (no judgment there, just a plain-Jane application of "ignorance"). The bitching may be justified sometimes, but mostly it results from not knowing what the hell you are talking about.
I shouldn't have to have an attorney to keep me out of trouble. You shouldn't need 6 years of schooling to understand law. There shouldn't be a need for a profession based on the manipulation of law at all. In a perfect world, people would be well educated enough that we could live together and our court system could work without hinging on minutae.
Are you playing Mad Libs?
I shouldn't have to have a doctor to keep me healthy. You shouldn't need 6 years of schooling to understand engineering. There shouldn't be a need for a profession based on the manipulation of data at all. In a perfect world, people would be well educated enough that we could live together and our computer networks could work without hinging on minutae.
Add this to the fact that the majority of lawmakers (congressmen), both at a state and federal level are also lawyers
This is wrong. A majority of legislators nationally and at my state's level are not attorneys. They are not even close to being a majority at my state legislature. I can't say whether this has helped or harmed things -- the politicians are still idiots.
It used to be that anyone could take the Bar examination in most any state, and if passed, was legally a lawyer in that state.
This is wrong, too. I'm not sure where you got this impression that you could just walk into a state, take a bar exam and *bingo* you're a lawyer. Good thing that bar examiners don't do other things, like background and credit checks.
Now most states have laws that REQUIRE you go to 7 years of college,
This is wrong, too. The requirement is for a 4 year degree plus three years of law school. This is far different than seven years of college.
raising the bar to entry, and protecting their own interests yet again.
So I guess that the EIT and professional engineering exams are simply protectionary guild practices used to reduce professional competition? Clearly, they have nothing to do with establishing some sort of minimum standards...
So now, the only people who can negociate, deal, sign on, and approve a legal matter all have the same education and experiences, with little or no influences (or significant influences) from individuals with a DIFFERENT background and/or interests.
That's right. If you walk into my local bar association meeting, you will find that we are all robots, cut from the same cloth. Just like you would find for engineers, teachers, firemen, policemen, or slashbots.
Class actions do not generally represent an effort to compensate similarly situated individuals for small harms that would be economically impossible to pursue individually. They are more in the nature of a semi-private regulatory process. They also represent one of the very few ways that non-government groups of people have to rein in corporate misfeasance and malfeasance.
The problem is, class-action suits are a strange beast. All of the settlement members get involved without paying any legal fees whatsoever. Then, it's practically a field day for lawyers - who could basically end up with 90% of any settlement won, making the settlement members mere pawns in the lawyers' plan to make some big cash for themselves.
Besides, who says that how much a class-action recipient receives in money damages is even what motivated the members of the class to initiate the lawsuit? When they are looking at getting a few bucks back from MS, why do they go to the trouble of being lead plaintiffs? The unnamed members of the class didn't even care enough to talk to an attorney. Why is everyone up in arms about the fees? See it for what it is -- a private regulatory alternative to a government that can't or won't act.
This is without question the most misquoted Shakespeare line ever.
You included the obvious link to the Seth Finkelstein interpretation (http://www.spectacle.org/797/finkel.html), so here is my counter-point on it: http://firms.findlaw.com/UWLAlawreview/memo21 .htm
Essentially, Dick the Butcher and Jack Cade are nit-wit idiot thugs (who later do some murdering) in Henry VI. The line occurs in some banter about all the wonderful things Dick would do if he were king. Clearly, he is an idiot, and unfit for rule. The line "The first thing we do, let's kill all the lawyers." comes along in a string of things he would do, if he were king: -more beer for all -free beer (as in free beer, not freedom) -dead lawyers -everyone will dress alike (the poor and the rich shall be equally well-clothed) -there shall be no money
Shakespeare did take a gratuitous shot at lawyers, but there was more to it that this. He was making fun of the loud-mouthed rabble and their notion of what utopia would look like. Clearly, Dick and Jack are simpletons, and their view of the world defies reality.
Imagine, if you will, that Seth Finkelstein is right: suppose that the crowds did guffaw at the idea of "killing all the lawyers" when the passage was recited. Who do you think, really, was the butt of the joke? The lawyers or the people who, in a string of idiotic bread and circuses fantasies, also think that killing all the lawyers will solve their problems?
Of course, there is a third alternative, that being that a a joke is just a joke.
As for me, I think it is a complete fallacy that killing all the lawyers would solve any of society's ills. I likewise think it is amusing that people think that by doing so, that their lives will be improved. Maybe it's funny as a throw away like in a play, but if you take it out of that context and live by it, then you're in the same crowd that thinks that avoiding doctors will keep you from getting sick.
People get into enough trouble on their own without lawyers, and if they hooked up with a good attorney whose sevices they knew how to use effectively, most people would be much better off than someone who avoids the lawyer's office like a plague house.
I highly recommend buying used CDs at amazon.com. I recently bought an Everclear CD that I wanted just one some from for approximately $1 plus shipping/handling. I rarely buy anything new.
You can also be prosecuted for what's called an "attractive nuisance"
You're confusing criminal and civil law. Attractive nuisance is a tort doctrine, which is civil law. Prosecutions occur only in the context of criminal law.
Your statement is roughly the equivalent of saying that someone has been electrocuted by fire. The result may be that someone is dead, but the method you describe is impossible.
The child falls off the deck and breaks his spine and is paralyzed from the waist down for life.
1) What deck are you referring to? In this discussion, we've got roller coasters, pools, and fences, but your post is the first to mention a deck.
The child is not at fault, and should not bear the cost of the negligence of others.
2) Life is not fair. No matter what society says, I am ultimately responsible for my own safety, as is every other person on this planet with agency (i.e. is concious with decision making capacity; infants don't qualify).
Parents will almost always assume responsibility for the safety of their young children because they love them and want their genes to continue on through more generations. There's nothing stopping them from doing that (I will do that when I have children of my own, probably about three years from now, I'm guessing) but let's not pretend that even younger children don't bear real responsibility for their sometimes stupid actions. To repeat: this parental generosity doesn't remove ultimate responsibility from the individual.
I'll bet my kids are going to end up in the emergency room more than once and I hope that they gain wisdom from their injuries, but I'm not going to sue the construction company building a house nearby if my kid sneaks into the partly finished house and 1) steps on a nail in a loose board 2) in suprise and pain at the nail penetrating his foot, falls from an unfinished upper floor to the plywood covered floor below, breaking his arm and then proceeds to 3) cut his hand on roughed in ductwork trying to get back out... (it was a very exciting day for my mom, who was convinced that I was never going to make it to adulthood). But there was no thought of suing the construction company. I was foolish and paid the price for my stupidity.
1. Read the parent post. There is a clear reference to a "kid that can't quite talk and a deck with no railing yet installed". Re-read it to get where I was coming from with my answer.
2. Two year olds are not the rational beings that you suggest. In fact, you did not even have to mention that you did not have kids -- I could figure it out from your post.
3. The attractive nuisance doctrine applies to very young children. When they get older they should "know better" and they are not allowed to recover under the doctrine.
4. I think your conception of the tort system has been distorted by big business and insurance company propaganda.
Maybe someday when youget older, you will see this differently. You'd be amazed at how little a sense of self-preservation young kids have. They are in permanent self-destruct mode.
Criminal law differs from tort law. The explanation about attractive nuisance that I made is only a slice of tort law. Generally for purposes of tort law, you can think of three categories of kids:
1. To young to know better or to have intent to commit a tort
2. a "middle" child age where facts and circumstances dictate whether a child is responsible for an act
3. a "responsible" age (below the age of majority, but still held to the same standard.
Criminal rules regarding when a child may be charged as an adult and held to the same legal standard (to get this straight, the legal standard for a crime is the same, adult or child, but the punishments differ, partly because it is the thought that young people do not have the judgment or maturity of adults and do stupid things as a result of youth and inexperience and that we should cut them a break before incarcerating them forever for a dumb mistake. [big breath]).
Essentially the issue in criminal law is youth and inexperience v. seriousness of crime and society's interest in preventing it from happening again by pnishing te perpetrator and making an example for other potential perpetrators to let them know that serious crime will be taken seriously.
As for the mechanics of making that determination, well, it depends on your jurisdiction. I do not practice criminal law (insert joke here, wiseguys), so I can't even tell you the tests in my jurisdiction.
What if there's a fence? I suspect any kid who is big enough and strong enough to jump a decent fence would also know that they aren't supposed to.
Aren't we geeks? Don't we know that physical size and strength have little to do with judgment and intelligence? Besides, you would be absolutely amazed at what a 7 year old can do if you turn your back on the little fucker. There's a movie about it called "Gone in 60 Seconds".
Yes, fencing and efforts to exclude are considered, but not in the manner you suggest. Age is the first thing to examine. In intermediate ages (above 7 and below something like 14) you need to look at the facts and circumstances. A mentally retarded child or maybe one who suffered from lead poisoning as a child might not be held to the same standard of care as a healthy child of the same age. It basically becomes a jury question.
rather that in many cases people are held responsible for things that they absolutely shouldn't be.
We're all responsible. It's a christian thing.
(For instance, the post in another branch commenting on the/sucessful/ lawsuit by a robber who brok in somewhere, and while he was breading and entering hurt himself on a knife and sued the owner. It's despicible that this case was even tried let alone reached the decision that it did.)
I love anecdotal evidence stating how "out of control" the tort system is. The fact is that I deal with the system every day, and the tragedies I see are (1) injuries where nobody can pay for damages to injured parties and (2) injuries where juries do not award damages even where they find for the plaintiffs on liability and causation.
The fact is that cases that make the rounds at the watercooler or through the news do so precisely because they are noteworthy and out of the ordinary. When you read the news item about the "outrageous" jury verdict of the week, please consider that (1) you were not in the courtroom and (2) you are hearing about it because it is unusual. The "burglar that slips, falls, and sues" type case is a "man bites dog" story and such a case would receive disproportionate publicity.
That leaves us with an extremely young child with poor judgment in an uncompensable situation just because someone likes to maintain a rollercoaster in his yard
This required a separate answer.
World with "good parents", "bad parents", "no roller coaster", "roller coaster", "injury from roller coaster", "no injury from roller coaster"
My matrix develops the following scenarios:
1. If "good parents" and "roller coaster"; no injury from roller coaster. 2. If "bad parents" and "roller coaster"; injury from roller coaster. 3. If "good paretns" and "no roller coaster"; no injury from roller coaster. 4. If "bad parents" and "no roller coaster"; no injury from roller coaster.
Ergo, the roller coaster leads to injuries that would not exist in its absence. It has a social cost. Fairness generally dictates that those creating or causing the costs to society must bear some portion of those costs. In this case, the coaster owner should bear some portion of the cost of the injuries that he is creating. If there were no roller coasters, there would be no roller coaster injuries. It is only fair that the roller coaster owner should pay when his property results in injuries.
You are hung up on this "trespassing" notion. Young kids can't trespass because they lack the requisite intent. Therefore, you folks are seeking a substitute by which the intent can be derived through the child by the parent's actions or inactions. Sorry, but the legal status of the child and the remedies available to the child do not depend upon the parent's actions or inactions. The child (rightly so) has a separate and independent legal status under the law.
Collectively, society has determined that it is a better policy goal to seek to protect young children from dangerous conditions that common sense and experience have told us will attract children. It is simply a pragmatic cost/benefit regulatory function performed through the tort system in the courts.
If this is grossly unfair to you, then tough shit. It's not going to go away just because you don't like it. I didn't like it either when I first started to digest it, but basically, it works. You hear about abuses from time to time, but that's why it's called "news".
The damages would only be taken from the maintainer of the "attractive nuisance" after the parents had demonstrated an inability to pay.
There would be a weighing of relative responsibility for the harm to the child. This is the responsibility of the jury.
They would be placed in a trust for the child that his guardians could only touch to cover medical bills.
Minor settlements must be approved by the courts to ensure that the funds benefit the child and payments from the award to the child are not misused by the parent. In my state, anyway.
The child would be placed in a foster family away from those parents, who, even if there were no backyard roller coasters, may be unable to successfully raise children in a world with operating railroads, roads full of fast cars, alleys full of junkies and muggers, and all sorts of other dangers that can be lethal to young children running around public (not to mention private) property unsupervised.
This is a separate legal issue. Whether a parent will be separated from the child and put into foster care has nothing to do with determinations of liability and damages. What you are suggesting is a legal non sequitur. I certainly think that injuries of a great magnitude would certainly interest the children and youth services nannies, however. Probably the first thing that would happen is that an incident report from the hospital would trigger an investigation, but, again, this inquiry has nothing to do with a tort claim and it would be handled separately.
Perhaps I'll find some poisinous berries on a bush on government land, let my daughter eat one then sue for them being an attractive nuisance.
I presume that this is a hypothetical, and that you ouldn't purposefully poison your own child. I definitely hope that this is true because you can't sure the government under most circumstances. Go google "sovereign immunity" and try again.
Let's say that the kid falls and is seriously injured (one who "probably [can't] even talk), making him, say not quite 2. The child falls off the deck and breaks his spine and is paralyzed from the waist down for life.
Who should bear responsibility for compensating the child for lost wages and future health care needs?
(1) The government (2) The parent tha wasn't watching the child (3) The person who saved some money by building and maintaining a deck that does not meet reasonable safety standards (and any deck with no railings fails to meet resonable guidelines) (4) Nobody, the child should suck it up
Well, first, the gub'ment has enough to do. It should only be there in the last resort. Second, the parent that wasn't watching is probably partly responsible as well. You (#3) benefitted from violating the safety standards for decks that are either imposed via ordinance or statute or which violate due care standards and which are part of the tort regulatory system. The child is not at fault, and should not bear the cost of the negligence of others.
I think anyone who sues because they are shitty parents...
The parents have no claim. Any claim is the child's claim. The negligent parents are not suing you.
By Pennsylvania law, you're required to have a fence around your pool. Otherwise, if someone decides to trespass and use your pool, you're responsible if they drown.
Facts and circumstances. Facts and circumstances. If a seven year old trespasses and drowns in your pool and you have no fence or a fence with a gate that doesn't latch, blah, blah, blah, you may be screwed. If the neighbor's college kids come over a trespass in your pool and drown, you'll be fine.
BTW, it is not a "Pennsylvania law" that I am aware of regarding pools and fences. Many, if not most, municipalities have regulations in their building codes and zoning codes addressing this issue, but not all. That doesn't make it a "Pennsylvania law"; it makes it a local ordinance.
Attractive nuisance. Sorry, user 633962, the courts disagree with your view. Here's a brief definition of the doctrine:
http://insurance.cch.com/rupps/attractive-nuisan ce -doctrine.htm
Clearly, a parent who fails to supervise would be likely be brought in as a codefendant, but that's not to say that a person or entity that maintains an attractive nuisance is without responsibility for the harms that can befall children (who do not know better).
Here's the problem: The tort system is used to try to compensate for damages. A very young child just doesn't know better, and the law has developed in a way that basically says "society should hold someone other than the child responsible for making the world safe for children because the child (1) doesn't know and better and (2) leaving the child exposed to danger is harmful. Better to look to a way to prevent these injuries from happening. Someone maintaining an attractive nuisance presumably has the benefits of it, so it is only fair that they should bear the costs of it as well.
Your issue is not necessarily with attractive nuisance, but with a separate tortfeasor, namely the negligent parent. While I do not disagree with you, you must remember that the harmed party is the child and limiting the child (who, remember, does not know better because he/she is very young) from recovering. Saying "blame te parents" doesn't screw the parents, it screws the kid more often than not, since it limits the ability of the totally without blame child from recovering for his injuries from either (1) the negligent parent (who may, and usually is, insolvent) or (2) the maintainer of an inherently dangerous object.
Any parent that sues another because [...] should have their lawsuit thrown out of court
It is not the parent's lawsuit -- it is the child's lawsuit. And yes, as I mentioned above, it is likely that the negligent parent would be brought into the suit as a codefendant by the maintainer of the attractive nuisance. Unfortunately, the parent is all-too-often insolvent. That leaves us with an extremely young child with poor judgment in an uncompensable situation just because someone likes to maintain a rollercoaster in his yard (something with low social utility). Sorry, but the courts do not agree with you.
I'd like to have an el-cheapo car stereo with a "line-in" function and an AM/FM radio. Why fool with klunky low power radios and cassette adapters? It's not like the interface is bulky or expensive -- look at cheap sound cards.
If anyone has seen something like this, please let me know.
Ludacris, Michael Jackson, NAS, Busta Rhymes, Keith Sweat and Musiq
Black musicians, eh? Nothing new here. Led Zepplin, Elvis, and the Stones stole music from black musicians for years, making the RIAA companies plenty of money. Now the RIAA is mad that people are stealing music from the black musicians owned by the RIAA slavemasters (1). Turnabout is fair play, baby. Too bad, RIAA.
GF.
1. It is admittedly hard to characterize Jacko as oppressed (2), but the artists come and go weekly, and the fat cats (in the industry) seem to just keep getting fatter (3) (4) (5).
2. Despite his hilarious attempt to do so himself.
4. Until file sharing started raping their profits.
5. I feel obligated to use this space to bitch about the fact that, like Open Office (6),/. makes it needlessly difficult to add footnotes to my posts.
Am I the only one who likes getting my electricity from a large, unfriendly, wasteful, polluting, bureaucratic multi-national corporation? What's wrong with you people?
Slashdot Mirror
1. Why be concerned about a lawsuit designed to make the defendant go broke from legal fees? I don't think that anyone claimed that was the case here.
2. There is no "loser pays" provision as a general rule in the US. In addition, this is evidently a settlement, and as part of the settlement, MS has agreed to pay the attorney's fees of the class.
3. There will be no appeal. It is a settlement. Microsoft agreed to it.
4. The settlement apparently needs to be approved by a judge still. It will become final at that point. The judge will need to approve the various aspects, including what the plaintiffs get, how much the fees are, and the language of the settlement.
GF.
The point of the post was not the answers you gave. The point was that even apparently simple rules require a body of interpretive law to give them meaning.
GF.
The thing is that most of the problems you need to hire a lawyer to fix, were made by another lawyer in the first place. Much like bad plumbers.
I have yet to see a client walk in my door who had his problems created by an attorney. Usually, they are created by (1) himself or (2) someone who ran into him with a car or (3) a deadbeat that he made a contract with who won't pay him.
GF.
Law isn't inherently complex the way the human body or physics is.
/home/grandmother/recipe/molassescookies/ is hard to remember or anything). For giggles sometime, post "I use Macs/Windows because they're easy" sometime. See what you get.
You are absolutely right. I have never come across a statute or case that was particularly hard to decipher. Unfortunately, there are lots of laws, rules, regulations, etc. You cannot possibly begin, even as an attorney, to know more than a fraction of them.
Do you want some sort of Ten Commandments system or something? Let's try that out sometime -- it'd just be mob rule.
Rule 1: Don't steal.
1. What about necessity (need to grab a life jacket from a sinking ship)?
2. What is stealing (picking up a penny from a sidewalk)?
3. What about "borrowing"? (joyriding in a car)
4. Filesharing.
The exceptions start to pile up for even the most "simple" thing such as "Don't steal". Imagine the problems when you get into things like "pay 10% of your income in tax" or "don't pollute".
What about trials? It's simple, after all, just go in and explain everything to a judge who will sort it all out for you. No need to worry about what is fair to present to the tribunal in evidence, or how to establish the authenticity of the evidence. No reason to make a rule to require fairness, so that each side knows more or less what the other side will present at trial. Let's not even get into relevance (Farmer Jones used to bugger sheep, and that's why he should be convicted of cutting down my corn to sell). So obviously, there's no reason for rules of civil procedure.
Certainly, what's good for one community is great for every other community, so we should scrap the notion of Jeffersonian democracy that we've used for hundreds of years and impose top-down rules. That means that people in Buffalo Ass, ND get the same rules and regulations for building that people get in midtown Manhattan. Sure. Great.
Your whole premise is flawed: It would not be good for law to be "simple". Complexity can be a problem, but, for the most part, things work pretty well. It just so happens that sometimes, you need a lawyer.
I think it is highly ironic that tech-focused folks are frequently found bitching at this site about clueless people that do not understand technology (I don't understand why my grandmother is unable to use Unix from the command line, I mean, it's not like rm -Rf
Then you see an enormous amount of bitching about "wah, wah, wah, the law is soooo complex and it shouldn't have to be that way, lawyers suck, they get paid too much, wah, wah, wah." Its just simple ignorance (no judgment there, just a plain-Jane application of "ignorance"). The bitching may be justified sometimes, but mostly it results from not knowing what the hell you are talking about.
GF.
I shouldn't have to have an attorney to keep me out of trouble. You shouldn't need 6 years of schooling to understand law. There shouldn't be a need for a profession based on the manipulation of law at all. In a perfect world, people would be well educated enough that we could live together and our court system could work without hinging on minutae.
Are you playing Mad Libs?
I shouldn't have to have a doctor to keep me healthy. You shouldn't need 6 years of schooling to understand engineering. There shouldn't be a need for a profession based on the manipulation of data at all. In a perfect world, people would be well educated enough that we could live together and our computer networks could work without hinging on minutae.
GF.
Add this to the fact that the majority of lawmakers (congressmen), both at a state and federal level are also lawyers
This is wrong. A majority of legislators nationally and at my state's level are not attorneys. They are not even close to being a majority at my state legislature. I can't say whether this has helped or harmed things -- the politicians are still idiots.
It used to be that anyone could take the Bar examination in most any state, and if passed, was legally a lawyer in that state.
This is wrong, too. I'm not sure where you got this impression that you could just walk into a state, take a bar exam and *bingo* you're a lawyer. Good thing that bar examiners don't do other things, like background and credit checks.
Now most states have laws that REQUIRE you go to 7 years of college,
This is wrong, too. The requirement is for a 4 year degree plus three years of law school. This is far different than seven years of college.
raising the bar to entry, and protecting their own interests yet again.
So I guess that the EIT and professional engineering exams are simply protectionary guild practices used to reduce professional competition? Clearly, they have nothing to do with establishing some sort of minimum standards...
So now, the only people who can negociate, deal, sign on, and approve a legal matter all have the same education and experiences, with little or no influences (or significant influences) from individuals with a DIFFERENT background and/or interests.
That's right. If you walk into my local bar association meeting, you will find that we are all robots, cut from the same cloth. Just like you would find for engineers, teachers, firemen, policemen, or slashbots.
GF.
Class actions do not generally represent an effort to compensate similarly situated individuals for small harms that would be economically impossible to pursue individually. They are more in the nature of a semi-private regulatory process. They also represent one of the very few ways that non-government groups of people have to rein in corporate misfeasance and malfeasance.
The problem is, class-action suits are a strange beast. All of the settlement members get involved without paying any legal fees whatsoever. Then, it's practically a field day for lawyers - who could basically end up with 90% of any settlement won, making the settlement members mere pawns in the lawyers' plan to make some big cash for themselves.
Besides, who says that how much a class-action recipient receives in money damages is even what motivated the members of the class to initiate the lawsuit? When they are looking at getting a few bucks back from MS, why do they go to the trouble of being lead plaintiffs? The unnamed members of the class didn't even care enough to talk to an attorney. Why is everyone up in arms about the fees? See it for what it is -- a private regulatory alternative to a government that can't or won't act.
GF.
The first thing we do, let's kill all the lawyers
1 .htm
This is without question the most misquoted Shakespeare line ever.
You included the obvious link to the Seth Finkelstein interpretation (http://www.spectacle.org/797/finkel.html), so here is my counter-point on it:
http://firms.findlaw.com/UWLAlawreview/memo2
Essentially, Dick the Butcher and Jack Cade are nit-wit idiot thugs (who later do some murdering) in Henry VI. The line occurs in some banter about all the wonderful things Dick would do if he were king. Clearly, he is an idiot, and unfit for rule. The line "The first thing we do, let's kill all the lawyers." comes along in a string of things he would do, if he were king:
-more beer for all
-free beer (as in free beer, not freedom)
-dead lawyers
-everyone will dress alike (the poor and the rich shall be equally well-clothed)
-there shall be no money
Shakespeare did take a gratuitous shot at lawyers, but there was more to it that this. He was making fun of the loud-mouthed rabble and their notion of what utopia would look like. Clearly, Dick and Jack are simpletons, and their view of the world defies reality.
Imagine, if you will, that Seth Finkelstein is right: suppose that the crowds did guffaw at the idea of "killing all the lawyers" when the passage was recited. Who do you think, really, was the butt of the joke? The lawyers or the people who, in a string of idiotic bread and circuses fantasies, also think that killing all the lawyers will solve their problems?
Of course, there is a third alternative, that being that a a joke is just a joke.
As for me, I think it is a complete fallacy that killing all the lawyers would solve any of society's ills. I likewise think it is amusing that people think that by doing so, that their lives will be improved. Maybe it's funny as a throw away like in a play, but if you take it out of that context and live by it, then you're in the same crowd that thinks that avoiding doctors will keep you from getting sick.
People get into enough trouble on their own without lawyers, and if they hooked up with a good attorney whose sevices they knew how to use effectively, most people would be much better off than someone who avoids the lawyer's office like a plague house.
GF.
If CD's sold for $5 per disk
I highly recommend buying used CDs at amazon.com. I recently bought an Everclear CD that I wanted just one some from for approximately $1 plus shipping/handling. I rarely buy anything new.
GF.
You can also be prosecuted for what's called an "attractive nuisance"
You're confusing criminal and civil law. Attractive nuisance is a tort doctrine, which is civil law. Prosecutions occur only in the context of criminal law.
Your statement is roughly the equivalent of saying that someone has been electrocuted by fire. The result may be that someone is dead, but the method you describe is impossible.
GF.
The child falls off the deck and breaks his spine and is paralyzed from the waist down for life.
1) What deck are you referring to? In this discussion, we've got roller coasters, pools, and fences, but your post is the first to mention a deck.
The child is not at fault, and should not bear the cost of the negligence of others.
2) Life is not fair. No matter what society says, I am ultimately responsible for my own safety, as is every other person on this planet with agency (i.e. is concious with decision making capacity; infants don't qualify).
Parents will almost always assume responsibility for the safety of their young children because they love them and want their genes to continue on through more generations. There's nothing stopping them from doing that (I will do that when I have children of my own, probably about three years from now, I'm guessing) but let's not pretend that even younger children don't bear real responsibility for their sometimes stupid actions. To repeat: this parental generosity doesn't remove ultimate responsibility from the individual.
I'll bet my kids are going to end up in the emergency room more than once and I hope that they gain wisdom from their injuries, but I'm not going to sue the construction company building a house nearby if my kid sneaks into the partly finished house and 1) steps on a nail in a loose board 2) in suprise and pain at the nail penetrating his foot, falls from an unfinished upper floor to the plywood covered floor below, breaking his arm and then proceeds to 3) cut his hand on roughed in ductwork trying to get back out... (it was a very exciting day for my mom, who was convinced that I was never going to make it to adulthood). But there was no thought of suing the construction company. I was foolish and paid the price for my stupidity.
1. Read the parent post. There is a clear reference to a "kid that can't quite talk and a deck with no railing yet installed". Re-read it to get where I was coming from with my answer.
2. Two year olds are not the rational beings that you suggest. In fact, you did not even have to mention that you did not have kids -- I could figure it out from your post.
3. The attractive nuisance doctrine applies to very young children. When they get older they should "know better" and they are not allowed to recover under the doctrine.
4. I think your conception of the tort system has been distorted by big business and insurance company propaganda.
Maybe someday when youget older, you will see this differently. You'd be amazed at how little a sense of self-preservation young kids have. They are in permanent self-destruct mode.
GF.
Criminal law differs from tort law. The explanation about attractive nuisance that I made is only a slice of tort law. Generally for purposes of tort law, you can think of three categories of kids:
1. To young to know better or to have intent to commit a tort
2. a "middle" child age where facts and circumstances dictate whether a child is responsible for an act
3. a "responsible" age (below the age of majority, but still held to the same standard.
Criminal rules regarding when a child may be charged as an adult and held to the same legal standard (to get this straight, the legal standard for a crime is the same, adult or child, but the punishments differ, partly because it is the thought that young people do not have the judgment or maturity of adults and do stupid things as a result of youth and inexperience and that we should cut them a break before incarcerating them forever for a dumb mistake. [big breath]).
Essentially the issue in criminal law is youth and inexperience v. seriousness of crime and society's interest in preventing it from happening again by pnishing te perpetrator and making an example for other potential perpetrators to let them know that serious crime will be taken seriously.
As for the mechanics of making that determination, well, it depends on your jurisdiction. I do not practice criminal law (insert joke here, wiseguys), so I can't even tell you the tests in my jurisdiction.
GF.
I think every arab prince has a roller coaster un his backyard.
Move to Oklahoma! Live like an arab prince!
What if there's a fence? I suspect any kid who is big enough and strong enough to jump a decent fence would also know that they aren't supposed to.
Aren't we geeks? Don't we know that physical size and strength have little to do with judgment and intelligence? Besides, you would be absolutely amazed at what a 7 year old can do if you turn your back on the little fucker. There's a movie about it called "Gone in 60 Seconds".
Yes, fencing and efforts to exclude are considered, but not in the manner you suggest. Age is the first thing to examine. In intermediate ages (above 7 and below something like 14) you need to look at the facts and circumstances. A mentally retarded child or maybe one who suffered from lead poisoning as a child might not be held to the same standard of care as a healthy child of the same age. It basically becomes a jury question.
GF.
Where'd this deck thing come from?
/sucessful/ lawsuit by a robber who brok in somewhere, and while he was breading and entering hurt himself on a knife and sued the owner. It's despicible that this case was even tried let alone reached the decision that it did.)
Read the parent post from A.C.
rather that in many cases people are held responsible for things that they absolutely shouldn't be.
We're all responsible. It's a christian thing.
(For instance, the post in another branch commenting on the
I love anecdotal evidence stating how "out of control" the tort system is. The fact is that I deal with the system every day, and the tragedies I see are (1) injuries where nobody can pay for damages to injured parties and (2) injuries where juries do not award damages even where they find for the plaintiffs on liability and causation.
The fact is that cases that make the rounds at the watercooler or through the news do so precisely because they are noteworthy and out of the ordinary. When you read the news item about the "outrageous" jury verdict of the week, please consider that (1) you were not in the courtroom and (2) you are hearing about it because it is unusual. The "burglar that slips, falls, and sues" type case is a "man bites dog" story and such a case would receive disproportionate publicity.
GF.
That leaves us with an extremely young child with poor judgment in an uncompensable situation just because someone likes to maintain a rollercoaster in his yard
This required a separate answer.
World with "good parents", "bad parents", "no roller coaster", "roller coaster", "injury from roller coaster", "no injury from roller coaster"
My matrix develops the following scenarios:
1. If "good parents" and "roller coaster"; no injury from roller coaster.
2. If "bad parents" and "roller coaster"; injury from roller coaster.
3. If "good paretns" and "no roller coaster"; no injury from roller coaster.
4. If "bad parents" and "no roller coaster"; no injury from roller coaster.
Ergo, the roller coaster leads to injuries that would not exist in its absence. It has a social cost. Fairness generally dictates that those creating or causing the costs to society must bear some portion of those costs. In this case, the coaster owner should bear some portion of the cost of the injuries that he is creating. If there were no roller coasters, there would be no roller coaster injuries. It is only fair that the roller coaster owner should pay when his property results in injuries.
You are hung up on this "trespassing" notion. Young kids can't trespass because they lack the requisite intent. Therefore, you folks are seeking a substitute by which the intent can be derived through the child by the parent's actions or inactions. Sorry, but the legal status of the child and the remedies available to the child do not depend upon the parent's actions or inactions. The child (rightly so) has a separate and independent legal status under the law.
Collectively, society has determined that it is a better policy goal to seek to protect young children from dangerous conditions that common sense and experience have told us will attract children. It is simply a pragmatic cost/benefit regulatory function performed through the tort system in the courts.
If this is grossly unfair to you, then tough shit. It's not going to go away just because you don't like it. I didn't like it either when I first started to digest it, but basically, it works. You hear about abuses from time to time, but that's why it's called "news".
GF.
If it were really the child's lawsuit, then:
The damages would only be taken from the maintainer of the "attractive nuisance" after the parents had demonstrated an inability to pay.
There would be a weighing of relative responsibility for the harm to the child. This is the responsibility of the jury.
They would be placed in a trust for the child that his guardians could only touch to cover medical bills.
Minor settlements must be approved by the courts to ensure that the funds benefit the child and payments from the award to the child are not misused by the parent. In my state, anyway.
The child would be placed in a foster family away from those parents, who, even if there were no backyard roller coasters, may be unable to successfully raise children in a world with operating railroads, roads full of fast cars, alleys full of junkies and muggers, and all sorts of other dangers that can be lethal to young children running around public (not to mention private) property unsupervised.
This is a separate legal issue. Whether a parent will be separated from the child and put into foster care has nothing to do with determinations of liability and damages. What you are suggesting is a legal non sequitur. I certainly think that injuries of a great magnitude would certainly interest the children and youth services nannies, however. Probably the first thing that would happen is that an incident report from the hospital would trigger an investigation, but, again, this inquiry has nothing to do with a tort claim and it would be handled separately.
GF.
Perhaps I'll find some poisinous berries on a bush on government land, let my daughter eat one then sue for them being an attractive nuisance.
I presume that this is a hypothetical, and that you ouldn't purposefully poison your own child. I definitely hope that this is true because you can't sure the government under most circumstances. Go google "sovereign immunity" and try again.
GF.
Let's say that the kid falls and is seriously injured (one who "probably [can't] even talk), making him, say not quite 2. The child falls off the deck and breaks his spine and is paralyzed from the waist down for life.
Who should bear responsibility for compensating the child for lost wages and future health care needs?
(1) The government
(2) The parent tha wasn't watching the child
(3) The person who saved some money by building and maintaining a deck that does not meet reasonable safety standards (and any deck with no railings fails to meet resonable guidelines)
(4) Nobody, the child should suck it up
Well, first, the gub'ment has enough to do. It should only be there in the last resort. Second, the parent that wasn't watching is probably partly responsible as well. You (#3) benefitted from violating the safety standards for decks that are either imposed via ordinance or statute or which violate due care standards and which are part of the tort regulatory system. The child is not at fault, and should not bear the cost of the negligence of others.
I think anyone who sues because they are shitty parents...
The parents have no claim. Any claim is the child's claim. The negligent parents are not suing you.
GF.
By Pennsylvania law, you're required to have a fence around your pool. Otherwise, if someone decides to trespass and use your pool, you're responsible if they drown.
Facts and circumstances. Facts and circumstances. If a seven year old trespasses and drowns in your pool and you have no fence or a fence with a gate that doesn't latch, blah, blah, blah, you may be screwed. If the neighbor's college kids come over a trespass in your pool and drown, you'll be fine.
BTW, it is not a "Pennsylvania law" that I am aware of regarding pools and fences. Many, if not most, municipalities have regulations in their building codes and zoning codes addressing this issue, but not all. That doesn't make it a "Pennsylvania law"; it makes it a local ordinance.
GF.
Two words:
n ce -doctrine.htm
Attractive nuisance. Sorry, user 633962, the courts disagree with your view. Here's a brief definition of the doctrine:
http://insurance.cch.com/rupps/attractive-nuisa
Clearly, a parent who fails to supervise would be likely be brought in as a codefendant, but that's not to say that a person or entity that maintains an attractive nuisance is without responsibility for the harms that can befall children (who do not know better).
Here's the problem:
The tort system is used to try to compensate for damages. A very young child just doesn't know better, and the law has developed in a way that basically says "society should hold someone other than the child responsible for making the world safe for children because the child (1) doesn't know and better and (2) leaving the child exposed to danger is harmful. Better to look to a way to prevent these injuries from happening. Someone maintaining an attractive nuisance presumably has the benefits of it, so it is only fair that they should bear the costs of it as well.
Your issue is not necessarily with attractive nuisance, but with a separate tortfeasor, namely the negligent parent. While I do not disagree with you, you must remember that the harmed party is the child and limiting the child (who, remember, does not know better because he/she is very young) from recovering. Saying "blame te parents" doesn't screw the parents, it screws the kid more often than not, since it limits the ability of the totally without blame child from recovering for his injuries from either (1) the negligent parent (who may, and usually is, insolvent) or (2) the maintainer of an inherently dangerous object.
Any parent that sues another because [...]
should have their lawsuit thrown out of court
It is not the parent's lawsuit -- it is the child's lawsuit. And yes, as I mentioned above, it is likely that the negligent parent would be brought into the suit as a codefendant by the maintainer of the attractive nuisance. Unfortunately, the parent is all-too-often insolvent. That leaves us with an extremely young child with poor judgment in an uncompensable situation just because someone likes to maintain a rollercoaster in his yard (something with low social utility). Sorry, but the courts do not agree with you.
GF.
I'd like to have an el-cheapo car stereo with a "line-in" function and an AM/FM radio. Why fool with klunky low power radios and cassette adapters? It's not like the interface is bulky or expensive -- look at cheap sound cards.
If anyone has seen something like this, please let me know.
GF
I saw some medical thing on a cable channel about how you could cut a specific nerve to simply make the sweating stop. Interesting.
Well, maybe a new area of interest for the masochists among us: self-modding! Open arm, cut nerve, insert obscene amount of blue leds, etcetera!
Check out the body modification websites to see that this is neither new nor nifty:
ick,
ick, and double-ick.
GF.
Ludacris, Michael Jackson, NAS, Busta Rhymes, Keith Sweat and Musiq
/. makes it needlessly difficult to add footnotes to my posts.
Black musicians, eh? Nothing new here. Led Zepplin, Elvis, and the Stones stole music from black musicians for years, making the RIAA companies plenty of money. Now the RIAA is mad that people are stealing music from the black musicians owned by the RIAA slavemasters (1). Turnabout is fair play, baby. Too bad, RIAA.
GF.
1. It is admittedly hard to characterize Jacko as oppressed (2), but the artists come and go weekly, and the fat cats (in the industry) seem to just keep getting fatter (3) (4) (5).
2. Despite his hilarious attempt to do so himself.
3. SNZ.
4. Until file sharing started raping their profits.
5. I feel obligated to use this space to bitch about the fact that, like Open Office (6),
6. http://www.openoffice.org/
Am I the only one who likes getting my electricity from a large, unfriendly, wasteful, polluting, bureaucratic multi-national corporation? What's wrong with you people?
Sheesh!
GF.