US Debt downgraded by Standard & Poor

[RandomGuy]

I'd say some combination of easier-to-meet motion to dismiss/summary judgment standards with appointed judges and a more ins utionalized system of arbitration.

I'm curious why you think that appointed judges become "corrupted" by party politics? Do you think judge's are capable of not having biases? Do you think any bias they have rises to the level of corruption?

I would note that judges are very often elected officials, and yes, I think getting re-elected and concerns about the way a ruling will play in an election affects the process.

One has only to listen to Fox "news" and tea party blathering about "activist" judges to get the impression there is a good chunk of the electorate that cares more about political litmus tests than legal ones.

As for outright corruption, I would say it happens, yes. If you wish, I can probably find one or two cases at the least. I seem to remember seeing a case in Texas recently.

When I think about elected judges, I am mindful of the small town in East Texas mentioned in this story, and wonder about that area's judges.
http://www.npr.org/blogs/money/2011/...patents-attack

[RandomGuy]

Were these cases tort or breach of contract matters? You do realize that prevailing parties already recover their fees in most breach of contract cases, right? How does that heavily favor the rich?

They were insurance companies involved in lawsuits that were in trials to determine ultimate liability under their contracted policies. Sorry I can't be much more specific.

I would expect a company to attemp to limit its ultimate culpability as the executives had a duty to their stockholders, and that was evidenced.

What I did not see was any mention as to whether that duty might conflict with greater ethical concerns. Therein lies the difference between what is legal and what is ethical.

I do not imagine discussions are altogether different between company executives and their counsel in other cases. The nature of the duty is similar.

[ElNono]

I think it's important to put cases in layman's terms. I think the average person being part of the jury forces the involved parties to do just that.

[vy65]

I would note that judges are very often elected officials, and yes, I think getting re-elected and concerns about the way a ruling will play in an election affects the process.

One has only to listen to Fox "news" and tea party blathering about "activist" judges to get the impression there is a good chunk of the electorate that cares more about political litmus tests than legal ones.

As for outright corruption, I would say it happens, yes. If you wish, I can probably find one or two cases at the least. I seem to remember seeing a case in Texas recently.

When I think about elected judges, I am mindful of the small town in East Texas mentioned in this story, and wonder about that area's judges.
http://www.npr.org/blogs/money/2011/...patents-attack

The only elected judges I know of are Texas-state judges. And I agree with you more than you can possibly imagine that they are ing awful. I've appeared before some and pre-emptively lost because the judge's ruling would appeal more to his partisans -- he didn't care to hear about what the law of the matter was.

That being said, the federal judiciary is completely different. They're all appointed for life and really don't care about what political cons uents think - i.e. - whether they're activist, strict constructionist, historicist, or any other -ist you can come up with.

You don't really explain which (federal or state; appointed or elected) type of judge you have in mind when you're talking about corruption. What makes me question your grasp on the situation is your suggestion that the corporate presence in the Eastern District of Texas makes the federal judges there corrupt. Not only are those judges life-appointments and not elected, but are really good at what they do. My firm appears before them a bunch, and I almost clerked for one. They're not corrupt.

[vy65]

I think it's important to put cases in layman's terms. I think the average person being part of the jury forces the involved parties to do just that.

Why? Economies are complicated, transactions in these economies are complicated, and necessarily litigation over those transactions is complicated. Why pander to the least-common denominator?

[vy65]

They were insurance companies involved in lawsuits that were in trials to determine ultimate liability under their contracted policies. Sorry I can't be much more specific.

I would expect a company to attemp to limit its ultimate culpability as the executives had a duty to their stockholders, and that was evidenced.

What I did not see was any mention as to whether that duty might conflict with greater ethical concerns. Therein lies the difference between what is legal and what is ethical.

I do not imagine discussions are altogether different between company executives and their counsel in other cases. The nature of the duty is similar.

So accepting your characterization, attorney's fees would already be awarded to the prevailing party in those disputes. If anything that would mean that insurance companies were being forced to pay out on policies AND also the insured's attorney's fees. How's that crush the little guy again?

As for the other stuff, sure, I guess in the abstract you can hypothesize that a corporation's duty to its shareholder's could conflict with some larger social responsibility to the community. I got some issues with that - namely - why does a corporation owe society anything (I'm not saying that it doesn't) and what are the contours of said responsibility? Why does that have to rise to the level of a legal obligation. etc... etc...

[vy65]

Oh and one other thing RG - what does all of that have to do with loser pays again?

[coyotes_geek]

I remember hearing somewhere that the average education level of someone who gets selected to serve on a jury in Texas is the 6th grade. I can't vouch for the accuracy of that statement, but I don't find it completely unbelievable. Would making it a requirement that in order to serve on a jury you have to have a high school diploma or GED help any?

[MannyIsGod]

I remember hearing somewhere that the average education level of someone who gets selected to serve on a jury in Texas is the 6th grade. I can't vouch for the accuracy of that statement, but I don't find it completely unbelievable. Would making it a requirement that in order to serve on a jury you have to have a high school diploma or GED help any?

Uncons utional.

[Agloco]

Aren't juries supposed to be comprised of "peers"? Or is that language superfluous?

Who's a peer in a corporate suit? In a civil suit?

[vy65]

I remember hearing somewhere that the average education level of someone who gets selected to serve on a jury in Texas is the 6th grade. I can't vouch for the accuracy of that statement, but I don't find it completely unbelievable. Would making it a requirement that in order to serve on a jury you have to have a high school diploma or GED help any?

You might have some Equal Protection problems.

[vy65]

Aren't juries supposed to be comprised of "peers"? Or is that language superfluous?

Who's a peer in a corporate suit? In a civil suit?

I don't think that language appears in the cons ution (for what that's worth). Plus the right to a jury in a civil case is elective. If the "peer" issue is such a problem, corporations probably would want to opt out of a jury anyway.

[coyotes_geek]

Uncons utional.

You might have some Equal Protection problems.

Well, that would be a deal killer.

It just seems like the jury system would be better for it if everyone who served on a jury had a fighting chance to comprehend the legal issues being put before them.

[Agloco]

I don't think that language appears in the cons ution (for what that's worth). Plus the right to a jury in a civil case is elective. If the "peer" issue is such a problem, corporations probably would want to opt out of a jury anyway.

Thanks for the clarification. I'm in no way acquainted with Cons utional Law.

From the drift of this discussion, I won't want to be either.

You echoed my thoughts though. I don't see corps wanting any part of a laypersons panel in a suit. FWIW I do agree that juries should be composed of "appropriate" persons who are equipped to digest all of the mumbo-jumbo being thrown about in the courtroom.

The sticky part is who decides who is "apropriate"? That's a path I don't care to venture on to.

[ElNono]

Why? Economies are complicated, transactions in these economies are complicated, and necessarily litigation over those transactions is complicated. Why pander to the least-common denominator?

Because 'experts' in whatever the domain is might have both a bias or an interest in a certain outcome of a case? That's why you try to put together a jury of different backgrounds, as diverse as possible, then each side brings the expert testimony when needed.

[vy65]

Because 'experts' in whatever the domain is might have both a bias or an interest in a certain outcome of a case? That's why you try to put together a jury of different backgrounds, as diverse as possible, then each side brings the expert testimony when needed.

The problem with that alternative is that typical juries are either biased, ignorant, don't care/don't want to be there, or some amalgamation of all three.

Plus juries aren't diverse as possible. Lawyers conduct voir dire/exercise their peremptory strikes to come up with 12 people as favorable to their client as possible. Juries aren't the objective cross-sampling of the community that passes judgment on the plaintiff/defendant.

Plus I think it's better to get the best people (meaning the most informed) together to decide on the merits of a case. The fact is most jurors don't care/don't want to be there. Sure, you might have a bias with a more professional arbiter (a judge, a mediator, whatever). But I'd rather have that bias than someone who just doesn't give a .

[ElNono]

The problem with that alternative is that typical juries are either biased, ignorant, don't care/don't want to be there, or some amalgamation of all three.

But that's exactly what diversity is.

Plus juries aren't diverse as possible. Lawyers conduct voir dire/exercise their peremptory strikes to come up with 12 people as favorable to their client as possible. Juries aren't the objective cross-sampling of the community that passes judgment on the plaintiff/defendant.

Sure, and you have both sides having the same chances to veto or approve jury participants. It also removes the lawyer's excuse that 'jury was stupid/biased' if they don't win the case, seeing they were integral part of the selection process.

Plus I think it's better to get the best people (meaning the most informed) together to decide on the merits of a case. The fact is most jurors don't care/don't want to be there. Sure, you might have a bias with a more professional arbiter (a judge, a mediator, whatever). But I'd rather have that bias than someone who just doesn't give a .

I don't agree with that at all. Laws apply to everyone the same. There's no reason to say that a common person can't walk in, be instructed about a law, be presented evidence and be able to vote.

[vy65]

But that's exactly what diversity is.

I'm confused. You were initially claimed that the problem with "experts" was their bias. But now you're admitting that jurors, who are just as biased, are not problematic because that's "exactly what diversity is." Why is an experts bias bad but a jurors bias not?

Sure, and you have both sides having the same chances to veto or approve jury participants. It also removes the lawyer's excuse that 'jury was stupid/biased' if they don't win the case, seeing they were integral part of the selection process.

Which is why there is no such thing as diversity in the court room. I agree that it removes, to some extent, the excuse you describe. What I don't see is how this practice gets you to a point where you can say a diverse cross-section of the community is hearing cases?

I don't agree with that at all. Laws apply to everyone the same. There's no reason to say that a common person can't walk in, be instructed about a law, be presented evidence and be able to vote.

I don't see what the equal application of laws to everyone has to do with the capabilities of a juror. Why would the use of an expert arbiter result in disparate application of the law compared to use of a jury? And if such were to happen, why wouldn't the court system be able to correct said misapplication of the laws (which is the system we have currently).

And there are plenty of reasons to say a common person can't be instructed about the law. For one, they don't care to be there/aren't invested in the case at all. Two, they typically think the subject matter is boring and tune out. Three, lawsuits are complicated - lawyers spend years developing the nuances of a case - nuances that are lost on a jury that hears a 3 week long case. Four, facts are complicated - I don't know how, for example, you can explain synidcating a credit facility to a person who didn't go to college. And five, laws are complicated.

[RandomGuy]

The only elected judges I know of are Texas-state judges. And I agree with you more than you can possibly imagine that they are ing awful. I've appeared before some and pre-emptively lost because the judge's ruling would appeal more to his partisans -- he didn't care to hear about what the law of the matter was.

That being said, the federal judiciary is completely different. They're all appointed for life and really don't care about what political cons uents think - i.e. - whether they're activist, strict constructionist, historicist, or any other -ist you can come up with.

You don't really explain which (federal or state; appointed or elected) type of judge you have in mind when you're talking about corruption. What makes me question your grasp on the situation is your suggestion that the corporate presence in the Eastern District of Texas makes the federal judges there corrupt. Not only are those judges life-appointments and not elected, but are really good at what they do. My firm appears before them a bunch, and I almost clerked for one. They're not corrupt.

My bad, I was a bit less than clear: When I was talking about corruption, I meant, but did not specify, that I was talking about elected judges only.

Federally appointed judges are much, much less likely to be corrupted by the political process, outside of their initial appointment, as you rightly noted.

[RandomGuy]

So accepting your characterization, attorney's fees would already be awarded to the prevailing party in those disputes. If anything that would mean that insurance companies were being forced to pay out on policies AND also the insured's attorney's fees. How's that crush the little guy again?

As for the other stuff, sure, I guess in the abstract you can hypothesize that a corporation's duty to its shareholder's could conflict with some larger social responsibility to the community. I got some issues with that - namely - why does a corporation owe society anything (I'm not saying that it doesn't) and what are the contours of said responsibility? Why does that have to rise to the level of a legal obligation. etc... etc...

It doesn't crush the little guy.

That was my point.

If you force every losing side in a lawsuit to pay for all the legal expenses of the other party, then you have a very chilling effect on the ability of people to seek redress, when you have a marked asymetry of resources.

Just to be sure we're talking about the same thing, define/explain what a "loser pays" system is. I know coyote brought it up, but you would have a better grasp on the subject than I do, and could outline it a bit more quickly than I could re-research it.

My memory of what I read is a bit dim, but I do remember being somewhat appalled by what I did read. There is a good possibility we are talking past each other a bit, and I would like to make sure that is not happening.

[boutons_deux]

"when you have a marked asymetry of resources."

like when an isolated Human-American litigates against a Corporate-American, because the service contract forbids class action litigation in favor only of the Corporate-American's corrupted "arbitrator"?

[RandomGuy]

The problem with that alternative is that typical juries are either biased, ignorant, don't care/don't want to be there, or some amalgamation of all three.

Plus juries aren't diverse as possible. Lawyers conduct voir dire/exercise their peremptory strikes to come up with 12 people as favorable to their client as possible. Juries aren't the objective cross-sampling of the community that passes judgment on the plaintiff/defendant.

Plus I think it's better to get the best people (meaning the most informed) together to decide on the merits of a case. The fact is most jurors don't care/don't want to be there. Sure, you might have a bias with a more professional arbiter (a judge, a mediator, whatever). But I'd rather have that bias than someone who just doesn't give a .

I would agree for the most part.

The question I have, is where does one draw the line between what is appropriate for a specialized, expert jurist, and what can be tried by a regular jury of registered voters?

[ElNono]

I'm confused. You were initially claimed that the problem with "experts" was their bias. But now you're admitting that jurors, who are just as biased, are not problematic because that's "exactly what diversity is." Why is an experts bias bad but a jurors bias not?

My problem is with bias in the subject matter on the case, which is where this 'expert jury' would come into play. I could be a patent holder with experience in defending patent cases in court, and that could conceivably make me an expert in patent cases, but also could make me severely biased since I have a direct interest in patents being withheld.

If a Johnny from the street has a bias towards latinos or asians, then that's a bias too, but arguably irrelevant to a patent case.

Hopefully you're not confused about my argument anymore (even if not convinced).

Which is why there is no such thing as diversity in the court room. I agree that it removes, to some extent, the excuse you describe. What I don't see is how this practice gets you to a point where you can say a diverse cross-section of the community is hearing cases?

Why not? My understanding is that while lawyers veto candidates, they don't get to choose the pool where candidates are drawn from. It might not objectively represent everyone in society, but it's as transparent a process as it can be, IMO.

I don't see what the equal application of laws to everyone has to do with the capabilities of a juror. Why would the use of an expert arbiter result in disparate application of the law compared to use of a jury? And if such were to happen, why wouldn't the court system be able to correct said misapplication of the laws (which is the system we have currently).

I never said that arbitration wouldn't work. I understand that arbitration saves time and money, but I'm not in the opinion that it's a superior option to a jury trial. My understanding of what we're discussing here also is not arbitration vs jury trial, but 'non-expert' jury vs 'expert-only' jury.

And there are plenty of reasons to say a common person can't be instructed about the law. For one, they don't care to be there/aren't invested in the case at all. Two, they typically think the subject matter is boring and tune out. Three, lawsuits are complicated - lawyers spend years developing the nuances of a case - nuances that are lost on a jury that hears a 3 week long case. Four, facts are complicated - I don't know how, for example, you can explain synidcating a credit facility to a person who didn't go to college. And five, laws are complicated.

That's fine and dandy, but the laws apply the same to everyone, and as such, everyone should understand them. If you're telling me that preparing instruction for a case is hard, then I agree. Then again, that's why you guys get paid the big bucks.

If them being careless/bored is the big issue, a tentative solution to this would be to make jury duty optional, much like voting. I'm sure some people will still show up.

[RandomGuy]

"when you have a marked asymetry of resources."

like when an isolated Human-American litigates against a Corporate-American, because the service contract forbids class action litigation in favor only of the Corporate-American's corrupted "arbitrator"?

That is a very good point.

There is a marked conflict of interest, to my understanding, in that arbitrators tend to be paid by the companies they are hearing issues about.

Arbitration clauses: a rights giveaway

Binding arbitration, a little noticed clause in many agreements and contracts, strips consumers of their fundamental rights, including the right to sue individually or join a class-action suit if they have a problem with a company.

Under binding arbitration, a consumer can be forced to pay thousands of dollars upfront to pursue a complaint, travel thousands of miles to a location of the company's choosing for the hearing, argue their case before an arbitrator who depends on the company for future business and surrender such basic legal weapons as the right to discovery and the right to appeal a decision.

In some cases, the clause allows the company to sue the consumer while denying the consumer the right to sue the company.

Labeled by the National Consumer Law Center as "astonishingly unfair and undemocratic," these clauses affect millions of consumers across the country. Corporations insert them into employment and home building contracts, in agreements for credit cards, computer software and hardware purchases, and many types of loans.

I am *very* leery of anything that might tend to play into that kind of resource disparity. It is bad enough as it is for individuals in tort cases, without making it worse.

[vy65]

It doesn't crush the little guy.

That was my point.

I got a little confused when you were talking about those with reasources vs. those without earlier in the thread.

If you force every losing side in a lawsuit to pay for all the legal expenses of the other party, then you have a very chilling effect on the ability of people to seek redress, when you have a marked asymetry of resources.

Not really. People can still file suit in court and seek redress in the form of settlement. If the thought of paying the other side's fees enters the discussion when deciding to file suit, chances are you don't have the greatest of claims to begin with.

Just to be sure we're talking about the same thing, define/explain what a "loser pays" system is. I know coyote brought it up, but you would have a better grasp on the subject than I do, and could outline it a bit more quickly than I could re-research it.

My memory of what I read is a bit dim, but I do remember being somewhat appalled by what I did read. There is a good possibility we are talking past each other a bit, and I would like to make sure that is not happening.

It's tort reform legislation Perry recently signed into law. It does two things. First, it modernizes Texas' motion to practice to make motions to dismiss available. Second, it requires the loser to pay the prevailing party's fees in tort cases. The business and commerce code already has a similiar provision for breach of contract cases. That's why I'd be surprised at someone being appalled by the reform.