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.