Politics: J'accuse!

[Mmmm, Burger (C.J.)]

Originally posted by bilmore
Doesn't unjust enrichment contemplate an injustice, not only in that you got undeserved money, but that you got it from someone who deserved to keep it?

or from someone who should have had it instead.

[sgtclub]

Are there ANY leaders in Iraq that are widely respected? It seems to me that there is a complete void there (and Chalabi is certainly not going to fill it) and what is missing is a representative of the Iraqis to stand up and say we support the US (if, indeed, they actually do).

[Tyrone Slothrop]

Originally posted by bilmore
Maybe I'm misunderestimastanding. Are you fixing punitives, or finding new funding sources?

Punitives awarded as now, but the state takes 3/4 of them before the plaintiff and/or his lawyers see any.

[bilmore]

Originally posted by sgtclub
Are there ANY leaders in Iraq that are widely respected?

I think Rumsfeld is still there.

[Tyrone Slothrop]

Originally posted by bilmore
Doesn't unjust enrichment contemplate an injustice, not only in that you got undeserved money, but that you got it from someone who deserved to keep it?

You plaintiffs' lawyers, with your obsession with "justice." Whatever. Burger can tell you what to do with justice.

eta: Seriously, though, there is a reason why punitives are "damages," and not an equitable concept.

[Tyrone Slothrop]

Originally posted by sgtclub
Are there ANY leaders in Iraq that are widely respected? It seems to me that there is a complete void there (and Chalabi is certainly not going to fill it) and what is missing is a representative of the Iraqis to stand up and say we support the US (if, indeed, they actually do).

How do you feel about the separation of church and state?

[bilmore]

Originally posted by Atticus Grinch
Hey, you pays your money and you takes your chancery.

I'm leaving again, but could not go without seeing this repeated.

[Mmmm, Burger (C.J.)]

Originally posted by bilmore
I think Rumsfeld is still there.

0 + 0 = 0

Where is Saddam being held? Gitmo or Abu Ghraib?

The problem seems to be deeper than respect for the US. If someone has the power to express that, and have it matter, they have the power to actually run the place. In the absence of such a person, who's going to patrol the country, Lt. Weinberg?

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone Slothrop

eta: Seriously, though, there is a reason why punitives are "damages," and not an equitable concept.

and, more important, there's a reason why the emphasis is properly on "punitive" not damages.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
Are you really worried that a 75% haircut for the state will eliminate lawyers for the ambulanced?

Hey, you're the people saying that a 75% tax rate almost completely eliminates the incentive to earn money. Don't you think that's true where you also have to spend money to make money? And under Ty's proposal, you don't even get to take your hard costs out of the common fund you worked so hard to earn for the state? And that in this way, it's actually harsher than a 75% corporate income tax rate, or most forms of personal income tax? In a word, yes, I think it affects the incentive. My firm wouldn't plow millions in attorney time to prove a pattern and practice of abuse, if they're only going to get a small portion. You're making your policy based on a rare case, like the McDonald's coffee case.

If it's 9 cases a year, what's the problem? And even if it's 9000, how reduced is the incentive, if the bread and butter PI lawyer makes his money off of the contingency on actual damages.

In every one but those 9 cases, there's this thing called a "settlement." It has a component called "risk." Sit in enough settlement conferences, and you realize that a system in which the top-end is capped (or effectively capped) for the defendant involves defendants offering less than 100% of compensatory damages. While the PI context involves other stuff at the top-end, like emotional distress and pain and suffering damages, these top ends aren't available in fraud and business tort cases.

I steal $100 from you. At the settlement conference, I offer you $75, because you will incur at least $25 in attorneys' fees. A rational actor will have to agree to the unjust enrichment to the defendant. There's never any incentive to make the plaintiff whole out of fear a jury will do rougher justice. Punitive damages --- which again are only ever a settlement factor in which the defendant agrees that his or her conduct will be found to rise to malice, oppression, or fraud --- play a role in that calculus.

Even granting your incentives objections to my position, as well as the conflict argument, there's still a difference between Mel Gibson getting paid for his work, a lottery winner being paid for his well chosen numbers, and a plaintiff being paid for damages not yet paid to others injured by the company's bad conduct.

It's telling that your concern is for a company. Do you not realize this rule would apply equally to cases brought against felons? Parents of murder victims? Auto cases involving DUIs?

And can you please deal with the unintended consequences argument of giving these incentives to the state? I'm going to lobby my legislature to introduce my jury instruction bill shortly. What're you gonna do? Challenge it in federal court?

[Tyrone Slothrop]

Originally posted by Atticus Grinch
Hey, you're the people saying that a 75% tax rate almost completely eliminates the incentive to earn money.

Hey, it's only 75% of the marginal windfall income. Taxation of compensatories is not changing.

Originally posted by Atticus Grinch
And under Ty's proposal, you don't even get to take your hard costs out of the common fund you worked so hard to earn for the state?

Why not? You're still getting punitives, just not as much.

Originally posted by Atticus Grinch
And can you please deal with the unintended consequences argument of giving these incentives to the state?

One consequence, it seems to me, is that defendants will have greater incentives to settle, at closer to 100% of compensatories but with no punitives. They still risk getting whacked, after all. You say the top end is capped, but that's just not so. The plaintiff can still ask for $10 million in punitives, and if the jury awards it he'll still get $2.5 million. Hell, once juries learn about this stuff, they may start quadrupling the punitive awards.

[Atticus Grinch]

Originally posted by Tyrone Slothrop
One consequence, it seems to me, is that defendants will have greater incentives to settle, at closer to 100% of compensatories but with no punitives. They still risk getting whacked, after all.

Um, that only works if you adopt my bill, making punitives even easier to obtain because the state is now rooting for the plaintiff. I'll bet that's a wedge issue between you and Burger.

[Atticus Grinch]

Originally posted by Tyrone Slothrop
Why not? You're still getting punitives, just not as much.

Under your model, law firm puts $100K of hard costs (let's say an econ expert for damages model) into case at trial. Gets $1M punitives verdict. Law firm must pay the $100K to its expert out of its $250K share, leaving $150K to split between firm and client; state gets its $750K allocation without paying any of the costs or attorneys' fees of getting the common fund in the first place.

Usually, fee agreements provide that hard costs get deducted from the gross, and do not come out of the law firm's contingent percentage. Which makes sense, because the costs were incurred in pursuit of both the lawyer's share and the client's share --- the common fund.

My point about taxes was that you usually write off expenses in pursuit of income --- that's what corporations do, or so I'm told. Here, it's a 75% tax rate with no deductions, even if you spend more in pursuit of the common fund that your share winds up being.

[sgtclub]

Originally posted by Tyrone Slothrop
How do you feel about the separation of church and state?

In Iraq? I don't care, it's there country. If we could get a shiek or whatever to bless our involvement and issue a fatwa to support us, I'd take it.

[Tyrone Slothrop]

Originally posted by Atticus Grinch
Under your model, law firm puts $100K of hard costs (let's say an econ expert for damages model) into case at trial. Gets $1M punitives verdict. Law firm must pay the $100K to its expert out of its $250K share, leaving $150K to split between firm and client; state gets its $750K allocation without paying any of the costs or attorneys' fees of getting the common fund in the first place.

Your hypo is assuming that there are no compensatories which would make the case worth litigating. It also ignores the California law which lets the plaintiff collect fees, etc. from the defendant. I am proceeding from the assumption that punitives are a windfall, not the raison d'etre.