The Fall of Bork

Judge Robert Bork (failed Reagan-era Supreme Court nominee turned general decryer of a culture in constant slo-mo collapse) is back in the news, this time for filing a lawsuit that some find ironic given his past pronouncements on how the legal system is too soft on greedy plaintiffs.

The basic facts: he fell off a railless dais at the Yale Club last June while climbing it to give a talk.

Bork, 80, a former Yale Law School professor, said the club was grossly negligent for failing to provide steps or a handrail between the floor and dais at an event for the New Criterion magazine last June, according to a complaint filed yesterday in Manhattan federal court.

``Because of the unreasonable height of the dais, without stairs or a handrail, Mr. Bork fell backwards as he attempted to mount the dais, striking his left leg on the side of the dais and striking his head on a heat register,'' he said in the complaint.

Bork is seeking more than $1 million in damages and punitive damages.

Eric Turkewitz, at the--of course!--New York Personal Injury Law Blog (man, this blogging thing is really spreading, isn't it?), for one, wonders how appropriate this is:

The Complaint doesn't even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous…..The Complaint asked for attorneys fees. Why? You can't get them in New York for a standard personal injury claim…..The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand?

For a judge famous, among other things, for decrying out-of-control tort judgements, some see this as embarassing. See Ted Frank at Overlawyered. David Bernstein at volokh.com provides an example of the Bork that might have some stern words for the Bork filing the suit:

"Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories."

Bork and Olson, Trial Lawyers and Other Closet Federalists, Wash. Times, March 9, 1995.

[Bernstein]:……I don't think that someone with such views is in any way barred morally or otherwise from using the tort system to redress an injury, but as a prominent attorney himself, Bork could instruct his attorneys not to assert "far-fetched legal theories" (e.g., punitive damages for a routine negligence case), or to request a "lottery-like windfall" (over $1 million in damages).

Should one be barred by social or intellectual pressure from taking advantage of government programs and legal redresses that one thinks shouldn't exist at all? An especially tangled web for libertarians to unravel. Rand (and Rothbard, as I recall) thought it depended on whether the government function was essentially rights-violating. (That is, walking on streets OK; calling in drug cops to arrest an enemy not OK.)

This one is a little trickier, since surely neither Bork nor any average libertarian thinks tort damages for harms caused is essentially illegitimate. Bork merely insists it goes too far on the margins. Bernstein's advice gives respectable guidance on how Bork could approach this without being a hypocrite. Of course, maybe he thinks being a hypocrite is a small price to pay for more than a million. It's hard to legislate intellectual consistency, in either real courts or courts of public opinion.

Comments

[crap-action-jackson]

video of the event in question - pleeeez!

[Paul]

I skimmed over the article, it's not the suit that bothers me, it's the $1 million that bugs me.

[Fluffy]

I agree that "surely neither Bork nor any average libertarian thinks tort damages for harms caused is essentially illegitimate."

But one source of gut-level support for the work Bork previously did on this subject was the general knowledge that people pursue [and win] claims for injuries based on their own negligence.

Although Bork must be getting on in years at this point, unless the stairs to the dais were smeared in bacon fat or covered in banana peels or something my instinct is to tell him "Watch where you're walking, dumbass!" and not tell him "Oh noes, you need a million dollars to help you feel better!"

[mediageek]

"The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand?"

That's got to be a completely political statement. I've never heard of a trial lawyer, anywhere, saying that damages were too little.

[Bee]

I am learning to fear/hate both other people's children, and old people.

[Abdul]

Bork's using the tort system to destroy the tort system. Wily genius, that guy.

[James Ard]

At eighty, maybe he doesn't really remember his past stances on insane tort abuses. But hopefully Abdul has nailed it, and he is using his own Chevy Chase moment to make a point about the system.

[Alan Vanneman]

I guess it's typical that none of the accounts of Bork's fall mention how high the dais was. Also, if you're eighty, maybe you shouldn't try to do something just because you saw a thirty-something do it.

On the other hand, if he really was immobilized and in severe pain for months, why is $1 million so outrageous? If you buy the notion that the Yale Club's failure to accommodate the non-spry was negligent.

[Happy Jack]

I skimmed over the article, it's not the suit that bothers me, it's the $1 million that bugs me.

With the ubiquitous Viagra these days, what kind of price can you put on "loss of companionship."

[Robert Stein]

The pain and suffering involves Bork's possibly missing the National Review luxury cruise, where he is a scheduled speaker and would be reunited with all his old Neo-Con friends. That must hurt:

http://ajliebling.blogspot.com/2007/06/neo-con-love-boat-back-to-future.

[JKP]

Didn't Bork lose most of his credibility when he started shilling for some loser firm trying to win in court with antitrust law something they couldn't win in the free market (such as it is in the USA)?

He should take a page from the Al Haig playbook and start doing informercials if he wants some extra spending money.

[brucem]

"Should one be barred by social or intellectual pressure from taking advantage of government programs and legal redresses that one thinks shouldn't exist at all?"

YES. Hypocrisy is the greatest act of immorality. There should be an "ideological estoppel" doctrine which acts to prevent those who have written about how we need to get rid of welfare from receiving welfare. To prevent those who advocate damage caps from claiming damages in excess of those caps. To prevent those who advocate against the 4th, 5th, and 6th amendment rights of the accused from exercising their own 4th, 5th, and 6th amendment rights when they are charged with a crime. To prevent those who argue for severe punishments for X crime from arguing for minimal penalties when they are convicted of X crime.

When it can be proven by a preponderance of the evidence that someone's ideology is contrary to the course of action they are attempting to take in court, they should be estopped (barred) from that course of action. The constitution should be amended to permit this in those cases where it would mean voiding someone's constitutional rights (because they advocated against those rights for others).

What about learning from your mistakes? People should not be permitted to unwaveringly support bad policies their entire lives only to "change their minds" when they are confronted with the realities of those policies. Too little too late. You said drug dealers should get the death penalty, well now that you're a convicted drug dealer you have no right to say the death penalty is cruel and unusual punishment grossly disproportionate to the crime.

[Stevo Darkly]

I have to disagree with this one:

to prevent those who have written about how we need to get rid of welfare from receiving welfare.

Only if that person is also excused from paying taxes that help fund welfare, or gets a rebate in the amount of his "share."

[Stevo Darkly]

BTW, whatever happened to Bork after "Human Behavior" came out?

[Lamar]

"The Complaint asks for an amount 'in excess of $1,000,000' (not merely $1M, but in excess of). Where are the damages for making such a huge demand?"

In Bork's defense (I just puked a little), demanding $1 million for a run-of-the-mill injury is standard practice for jurisdictional reasons. In order to get into Supreme Court (as opposed to the slightly lower civil court), the injury must be in excess of $25,000. If the attorney were to demand, say, $30,000 to get into Supreme Court, they would be open to an attack on the value of the injury. Demanding $1 million removes that argument for the defense. The "personal injury guy" knows this and is being disingenuous. It's a run of the mill demand and shouldn't surprise anybody. I used to be a defense guy, and I would routinely settle a million dollar claim for somewhere between $10,000 and $25,000. Most defense lawyers aren't too concerned about the amount of the demand. Most think that summary judgment should be a more reasoned analysis. The amount of the demand? Ehh, that's just a stupid number. Bork sucks for a lot of reasons, but to take a routine personal injury demand and turn it into some hypocritical snafu is too much.

[mitch]

If you ever get close to a human
And human behaviour
Be ready to get confused
There's definitely, definitely, definitely no logic
To human behaviour

[jb]

So he didn't ask for steps or a hand up, tried to climb a clearly-labeled dais and fell, and it's -someone else's- fault?

[Karen]

I'm just going to enjoy watching Bork's National Review supporters try to argue that this lawsuit, which if filed by virtually anyone else on the planet they'd complain would Destroy The World As We Know It, is somehow logical and necessary. (FWIW: given the available facts, it doesn't sound like a particularly unusual or bad claim. Fora that invite 80 year olds to speak should probably have steps and rails around their platforms.) Who else thinks that Kathryn Jean Lopez will have a column slobbering all over Bork's brilliance by the end of the week? Double or nothing that said column includes at least one sentence attacking the plaintiff's bar?

[VM]

Stevo:

he was seen hier

[tarran]

Scott Scheule once posted a hilarious bit of commentary that might amuse:

"My admiration for Robert Bork is quite high, but that said, I thought this passage from Slouching Towards Gomorrah was funny. Unintentionally so, I imagine. This quote comes from a chapter in which he bemoans the libertine sexual mores of present day."

"'One evening at a hotel in New York I flipped around the television channels. Suddenly there on the public access channel was a voluptuous young woman, naked, her body oiled, writhing on the floor while fondling herself intimately. Meanwhile, a man's voice and a print on the screen informed the viewer of the telephone number and limousine service that would acquaint him with young women of similar charms and proclivities. I watched for some time -- riveted by the sociological significance of it all.'"

"Sociological significance. "
"Sure."

[robc]

Stevo,

Dont criticize brucem. His ideas have good applications Since hypocrisy is being banned, then if we write about how taxes should be eliminated, then we are no longer allowed to pay them. It would be hypocritical, after all, and that cant be allowed.

Sweet!

[U.T.Q.]

Of course, maybe he thinks being a hypocrite is a small price to pay for more than a million.

There's actually something kind of reassuring about this. I think I've always assumed, even if just subconsciously, that by the time you turn 80 you kinda stop caring about stuff -- that simply seeing your grandkids or whatever is enough to keep you satisfied.

The notion that when I get old I'll still be greedy for money so I can, like, do cool shit with my life makes me more optimistic about aging.

[Ken]

"There should be an "ideological estoppel" doctrine"
Beautiful. I especially want this doctrine to all those NROer's who hate stem cell research. When the cures come out they should be barred from getting them. That would make some conservative hypocrites think twice. Now all they have to do is lie low for a little while and then just sign on to a different think tank...

[dj_of_raleigh]

Bork, tho the name sounds alien, is human.
His ideal is for reasonable settlements,
but that is his 'ideal' and this is 'real.'

One might be against gambling in principle,
yet gamble and win, and collect the prize.

I'm against burying lush land with roads,
yet I merrily drive down the road daily.
Am I a hypocrit or a realist with an ideal.

But, for sure, let's give Bork hell for this
and not let him get on the Supreme Court.
Gore's home was a energy hog, got caught at it,
and now it is going to be a model of greenness.
Of course, he is probably still flying around.

[David Nieporent]

Lamar: leaving aside whether your argument has ethical merit, it is factually flawed;the suit was filed in federal court. (That means, of course, that they needed to meet the >$75,000 limit for diversity jurisdiction. But there's no requirement that they demand a million, and of course the defendant can only challenge the jurisidictional amount if it's clear on its face that it can't be worth $75K.)

[Tax Payer]

("...walking on streets OK; calling in drug cops to arrest an enemy not OK.)

I think libertarians should stay off the fucking tax-payer funded streets. Stay out of our schools, too.

[\"DJ,\" Rendered Legible And W]

Though the name sounds alien, Bork is human. His ideal is for reasonable settlements, but that is his ideal and this is real.

One might be against gambling in principle, yet gamble, win and collect the prize. I'm against burying lush land with roads, yet I merrily drive down the road daily. Am I a hypocrite, or a realist with an ideal?

But let's definitely give Bork hell for this and not allow him to get on the Supreme Court. Gore had a house that was an energy hog; he got caught; now the house is going to be a model of greenness. Of course, he probably is still flying around.

[brucem]

Yes, those who oppose stem cell research should be ideologically estopped from benefitting from stem cells. I'd like for those who oppose science to be estopped from benefitting from science, but that's only enforceable to a point.

[M]

maybe he doesn't really remember his past stances

What "maybe"? Unless it is the gravity newly bearing on those past stances that has become insupportable.

[Lamar]

David Nierporent: Wow, I didn't notice that he filed in federal court. There's no way that the federal court in Manhattan would entertain a small-time personal injury suit......unless there's a famous judge involved....

[Stevo Darkly]

DJ of Raleigh, I liked the original, poem-like format of your post better. It sort of reminded me of Nostradamus.