The Man Who Cried 'Lawsuit!'

For the last year and a half, George Washington University law professor John Banzhaf, who treats the epithet "legal terrorist" as a compliment, has been bragging that fast food restaurants and other purveyors of fattening comestibles are running scared because of the obesity litigation he champions. McDonald's et al. ought to be worried, he said, because already there have been "five successful fat lawsuits."

But now that Congress is considering a ban on lawsuits that blame food makers and sellers for making people fat, Banzhaf admits he may have exaggerated a bit. In a press release issued yesterday, he says the Personal Responsibility in Food Consumption Act "is surely premature, because there has been only one obesity lawsuit, and it was dismissed by a federal judge." Before Congress passes legislation like this, he says, "there should be a real history of abuse which must be corrected, not orchestrated panic based upon one failed lawsuit and some quoted-out-of-context rhetoric."

Having orchestrated the panic and provided the rhetoric, Banzhaf knows whereof he speaks. Still, he is clearly pleased (as always) by the attention, saying the legislation is "like a personal Bill of Attainder aimed just at me."

Comments

[dlc]

To repeat an unanswered question from the previous thread on this topic, WHY exactly are the fast food suits so ridiculous, not as a matter of law, but of public policy or economics?

[Gilbert Martin]

"To repeat an unanswered question from the previous thread on this topic, WHY exactly are the fast food suits so ridiculous, not as a matter of law, but of public policy or economics?"

Why because what type of and how much food people stick in their mouth's doesn't belong in the realm of "public policy" and it undercuts the basic concept of individuals being responsible for the consequences of their own actions.

That's why.

[Stephen Fetchet]

Kevin, maybe I'm missing something here, but Gibbons v. Ogden held that the Commerce Clause prohibited the State of New York from issuing a monopoly to a single, in-state steamboat operator, thus prohibiting competition (especially from out-of-state) steamboat operators. The logic was that the Commerce Clause forbids undue restraints on trade, and it is especially applicable to national channels of commerce - like the coastal waters, and the river and canal system that permitted interstate trade.

Had the case come out differently, the state of Massachusetts could have forbidden boats from other states from passing through its coastal waters for fishing or for travel to Cap Cod; the State of New York could forbid cars and trucks with out of state platesfrom traveling on its roads.

I would subit to you that striking down state level restraints on trade is exactly what the Commerce Clause was intended to do.

One other thing - I've heard the idea that Wickard v. Filburn was the atrocity that signalled congress to overrun state imperatives using the Commerce Clause; or that the Shreveport Rate Cases or U.S. v. Darby or Katzenbach v. McClung were the watershed, evil events.

But where the hell do you get Gibbons v. Ogden as that seminal, watershed event?

[dlc]

Thanks for biting Gilbert!

"it undercuts the basic concept of individuals being responsible for the consequences of their own actions"

I agree generally, but in this case, individuals do not bear the sole consequenses of their actions. Related health costs are incurred by anyone who pays a health insurance premium or waits in line at an overcrowded hospital. Now before you answer "we need to change health insurance, the system, etc..." - let's acknowledge that that is a given.

However, assuming that the system is as it is for now and health insurance premiums will never be soley tied to individual risk factors (which is probably impossible), why is it fair or economical for healthy people to bear costs associated with chosen, unhealthy lifestyles?

Now, I perfectly understand that it is utterly ridiculous for someone who chose to eat fast food to get a million dollar settlement because they had a heart attack. I agree that that part of it is absurd. However, these cases are not really about that - they are about imposing a implicit tax on fast food. That is what was ultimately accomplished by the tobbacco law suits - while the initial suits were from individuals who won silly-sized awards, subsequent cases were brought by state AG's that won huge settlements to compensate state-funded health systems. The cases resulted in price increases that provided incentives to stop smoking - the money was then (supposed to be) put back into health care to make up for smoking's externalities. The fast food lawsuits, of course, are not about compensating "victims" but about forcing a price increase through class-action suits brought eventually by State AG's that sends an incentive such that people buying unhealthy foods bear the externalities of their actions. This of course assumes that any settlement will be re-directed to somehow lowering the cost of health care for all.

Bottom line is, I think its a trade off between slightly higher fast food prices and slightly lower health care costs. I'd choose the latter because I must, at some point, receive health care, but I could live with never eating at McDonalds again. Ultimatelty I'd choose a tax scheme over the lawsuits, but the "T Word" is generally forbidden on HR. So, if I have to grit and bear the thought of some fat bastard winning millions because he was victimized by a Big Mac, so be it.

[Mo]

dlc,
My biggest problem with this is what is defined as "fast food" or "unhealthy food" in the eyes of the law. The McRib and the Whopper are pretty obvious candidates, but what about the small mom and pop burger joint that I love oh so much? What is the criteria, fat-content, calories, carbs? The thing about the diet is that you could eat nothing but low fat carb loaded diets and be a fat bastards. You could eat a rich, high fat, but balanced diet (and small portions) and live a healthy life.

More than any individual meal or part of a meal, the balance of the diet is a key part of a healthy diet. You can't get that by picking and choosing certain items to tax. A big, fat steak is part of a healthy diet, but not the only factor, same goes for salad. Unless you want the government monitoring your entire diet so they can approve of your lifestyle (and I do not), this is not an area for government interference.

[Rebekah]

Um, dlc, the States in theory were supposed to use the funds received from the tobacco settlements to shore up medicaid/medicare, but as it was to be expected, this hasn't really happened. It's a slush fund for the State to fund other projects and programs that it feels it needs. Not to mention that the settlements make it difficult for other tobacco companies not involved in the suits to actually sell their product cause there is a fear that this will undermine the companies involved in the lawsuits, perhaps causing them to go bankrupt. And if that ever happens, well kiss all that cash goodbye.

As for fast food making people fat? Perhaps a little exercise is in order. Do we all have to pay more for health care because of the poor choices of a few? Yup. And it's wrong. I shouldn't have to pay one dime for their health care. And no one should have to pay one dime for mine. So, rather than encourage these lawsuits, which only line the pockets of a very few "vicitms" and their pet sharks, I mean attorneys, I think prohibiting these lawsuits is best. Ultimately because personal responsibility is essential to a free society and people need to be held responsible for the poor choices that they make. These lawsuits will do nothing to lower health care cost. It isn't just fast food that causes obesity. It's just one cause out of many.

[Daniel]

dlc-

How about allowing insurance companies to deny chronically obese people health insurance or force them to pay higher premiums. And how about denying public health care assistance to chronically obese people. You might say this sounds mean, but we do it all the time with drug addicts or people who engage in other types of risky behavior. You want to be a fat slob or a junkie, be my guest. But when you find you have the health of a 90 year old at age 35, either save up your own money to get medical care or quit stuffing the Big Macs down your throat.

[dlc]

Rebekah:

I know, that's why I said "(supposed to)". Just because it was carried out wrong in practice doesn't mean the idea was bad.

"I shouldn't have to pay one dime for their health care. And no one should have to pay one dime for mine."

I agree, but that will never, ever happen. It could only happen if you prohibited health insurance and made people pay all medical expenses out-of-pocket.

Mo: You bring up a very good point. How about a tax on individual fatness? A doctor would determine your ideal body weight and deviations from that weight would result in a tax of $10 per pound, per year. We'd have a lot of skinny people in this county. The caveat is that all money must be used to pay for health care for others. Dranconian and freedom limiting for some? Yes. However, it is an efficient solution.

[Mo]

dlc,
Sounds fair, with one caveat, fat guys get a discount on their SS taxes since they're gonna die sooner. For all the complaints about unhealthy people costing money, we foget that they also save us a bundle by dying off quicker.

[garym]

dlc,
It sounds as if you're saying that the government should force people to assume lower-risk lifestyles in order to save the insurance companies money. If I choose to pool my risk with others by buying insurance, that doesn't entitle me to force them (here I mean actual governmental force, as opposed to "forcing" people by voluntarily denying them insurance) in order to save myself some money.

Insurance, like any other economic decision, is based on limited knowledge. That doesn't mean it's "unfair." If you think one insurance company more accurately estimates your risk than another, then choose that one. If you think you're entitled to run other people's lives to make up for lack of information, get the hell out of mine.

Shooting unhealthy people is also an "efficient" solution, in that it would lead to a healthier populace on the average. That doesn't mean it's a just one.

[Matthew]

The overarching problem with the idea that since government makes us all pay for health care for everyone, it has a right to tax and use guns to influence anything that affects that in any way is that the logic is circular and takes away any possibility of any limit on governmental power. Using a usurped power to justify more usurped power is logically and morally wrong. There is no constitutional power to provide nationalized health care. That fact has long since been thrown by the wayside. But to say that since the power is being used, it justifies exponentially more regulation and power is ridiculous.

The sort of "logic" that the food police use is, of course, wrong, but that can also be demonstrated in other arenas where the same logic has been used to ill effect. The same sort of thought process is what has led to the blatant and painful abuse of the commerce clause. The federal government began attempting to regulate things that were clearly forbidden, but now essentially all they have to do is show that something that affects trade in any way and at any time was somewhere in the same room as the thing they're trying to justify taking control of. When government uses tangential logic such as that, any limit on power is effectively eviscerated. It can't be allowed to happen.

[Eric]

"Banzhaf admits he may have exaggerated a bit."

Jacob, you're too kind. He lied through his teeth.

[Joe Majsterski]

I hate that guy. Stupid ego-trippin money grubbin scumbag. Well, I suppose he's not stupid.

[Skip Oliva]

Heh. Banzhaf clearly doesn't understand what a Bill of Attainder is, but that's neither here nor there.

What galls me more than Banzhaf himself is the fact he's actually employed by a respected law school (George Washington University, my neighbors). Banzhaf actually teaches a class where he instructs students on how to file "public interest" lawsuits, and students can get credit for actually filing such suits. This does not strike me as an appropriate academic exercise. It's one thing for law students to do clinical work--assisting the elderly in preparing wills, etc.--but Banzhaf is basically using university students and resources as his own private public interest law firm.

I'm not arguing GW should fire Banzhaf. But I think the public needs to be more critical of the institutions that employ men like Banzhaf.

[Kevin Carson]

I think the lawyers jumping on the tort bandwagon against guns and fatty foods are scum.

But even more strongly, I'm a Tenth Amendment absolutist. And I'm against the Congressional practice (under cover of the Gibbon v. Ogden atrocity) of using the Commerce clause as a general grant of regulatory power, and creating a federal common law. This is a matter to be remedied in the common law of the states. Even in cases of federal "diversity of citizenship" jurisdiction, the case needs to be determined by the common law of the state where the tort was committed or the contract made. Federal common law should be limited to the areas falling under a strict construction of the commerce clause.

[dj of raleigh]

> what is defined as "fast food" or "unhealthy food" in the eyes of the law. The McRib and the Whopper are pretty obvious candidates, but what about the small mom and pop burger joint

[thoreau]

It's a shame that Banzhaf has fallen so low. He once did some very interesting academic work. He created something called the Banzhaf Power Index to analyze various legislative apportionment schemes as well as the Electoral College. He wanted to understand how various types of districting would distribute power. Now, some here may think that the answers are obvious, but he came to some surprising results. Whatever you think of various institutions, he gave an interesting analysis of them. It was in the best traditions of mathematical social science, the same traditions that have spawned things like Game Theory and Arrow's Theorem.

Now, alas, he only chases ambulances riding low on their shock absorbers. (He's looking for the ones with heavy passengers.) How far the mighty have fallen.

[MC]

I bet there are folks who would like to aim somthing else at Banzhaf and his ilk.

[kevrob]

dj, don't forget you can "have it your way." sm
Tell them to leave off the mayo. Heck, they'll even hold the bun.

http://apnews.myway.com/article/20040114/D802RQVG0.html

The world just gets weirder.

[chichka]

Now, I perfectly understand that it is utterly ridiculous for someone who chose to eat fast food to get a million dollar settlement because they had a heart attack. I agree that that part of it is absurd. However, these cases are not really about that...

No, these cases really are about that. It can be argued that the initial tobacco cases were not, since for twenty years they lost, but in this case it's about the money for most of them. The lessons of asbestos and tobacco have not been lost on the litigators.

Yes, there are a few (Banzhaf probably one of them) who genuinely hope to make the world a better place through huge redistribution of wealth to themselves, but I doubt the majority of the lawyers attending the seminars on how to file fast-food suits are in that class.

I agree generally, but in this case, individuals do not bear the sole consequenses of their actions. Related health costs are incurred by anyone who pays a health insurance premium or waits in line at an overcrowded hospital. Now before you answer "we need to change health insurance, the system, etc..." - let's acknowledge that that is a given.

Of course, it's not at all a given. One of the many lies told by the lawyers (and a lot of others) in the tobacco cases was that smoking cost the public money. In fact, smokers provided a net financial benefit, according to most calculations. This was mostly through dying early, which may be distasteful to contemplate, but it is nonetheless the case. And there is no particular reason to assume anything different about obese people. Dead people do not draw social security.

As for lines at crowded hospitals, well, that's a matter for those who build and manage hospitals to take up.

And, of course, there is the fact that I have no moral obligation to live a healthy lifestyle for anybody else's convenience, or to lower their costs. The questions about life insurance premiums and so forth are genuine, but how much do I have to cost you before you get to start meddling in my lifestyle? Can I smoke until I'm forty, if I promise to give it up then, before I get cancer? Or does the loss of productivity it entails justify forcing me to pay for it through tobacco taxes?

(This, by the way, is one of the most vile of the numbers invented in the lifestyle wars -- the amount that something costs through "reduced productivity". Not only is it impossible to accurately quantify, but it implies that it is everyone's obligation to be as productive as possible for the good of the collective.)

And, by the way, as McDonald's and the rest are being raked over the coals for making people fat, and charged for the resulting health care costs, do they also get to take credit for the increase in productivity of people who can now work instead of being at home to cook? After all, it's a lot easier to work overtime if you can grab a burger on the way home, instead of having to cook a meal or spend more time and money at a restaurant. I'm sure somebody somewhere can come up with a study on the subject.

[kohlrabi]

This land is in urgent need of more lawyers.

Look at it: Huge awards of punitive damages make trial lawyers (and even some plaintiffs) pretty rich, so they can buy mansions, and Ferraris, and big SUVs, and real big diamonds, and Piaget watches, and Hermes purses, and Cartier necklaces for their cats & dogs, and whatnot, and surely, all this is going to increase the BIP, and therefore the whole country gets richer and richer, and more clever kids are flocking to law school and we have more lawyers tomorrow and even more lawyers in ten years, and of course they will make big money too -- Congress will see to that by ejaculating more and more complex and indigestible legislation, always a great make-work program for lawyers.

Thus the BIP increase will be even higher and food will be the new tobacco and politicians will be happy and reparations for slavery will follow post-haste to make black lawyers happy too (we can't have that they feel slighted, no?)

And as the BIP grows and never stops growing the lawyers thrive and prosper and of course the whole fucking country thrives and prospers too, until everybody's a lawyer or a plaintiff.

But who remains to be sued then?

[dj of raleigh]

> what is defined as "fast food" or "unhealthy food" in the eyes of the law. The McRib and the Whopper are pretty obvious candidates, but what about the small mom and pop burger joint

[Chris]

Just about every proposal to restrict our freedom and control our behavior in some way, is proposed by demonizing the slightest externality that we might be opposed to. Gay marriage will make straight marriage feel less special; second-hand smoke will turn your lungs black; my neighbor painting his house pink will lower my house's resale value, and someone supersizing their fries might increase my insurance rates. Bullshit -- it's a politically acceptable argument that disguises simple intolerance.

[David Nieporent]

DLC - there's a sense in which what you say is correct.

Now, I perfectly understand that it is utterly ridiculous for someone who chose to eat fast food to get a million dollar settlement because they had a heart attack. I agree that that part of it is absurd. However, these cases are not really about that - they are about imposing a implicit tax on fast food. That is what was ultimately accomplished by the tobbacco law suits - while the initial suits were from individuals who won silly-sized awards, subsequent cases were brought by state AG's that won huge settlements to compensate state-funded health systems.

[...]

Bottom line is, I think its a trade off between slightly higher fast food prices and slightly lower health care costs. I'd choose the latter because I must, at some point, receive health care, but I could live with never eating at McDonalds again. Ultimatelty I'd choose a tax scheme over the lawsuits, but the "T Word" is generally forbidden on HR.

It's a given that I disagree with your premise -- that these taxes/regulations are justified in any way by the alleged "costs" of fast food -- but the larger problem with it is this: juries -- and judges -- are not authorized in our system of government to tax.

Taxes are a political decision, not a legal one. Banzhaf and his ilk can't win in the court of public opinion; they know they'd never get any public support for the idea of taxing fast food, and so they know they'd never get any legislative support for it. So they're doing an end run around democracy.