A look at the engines of Amercan job creation

For almost two centuries Americans have wondered how their children will find jobs.  First, agricultural jobs disappeared.  Then manufacturing jobs disappeared.  Now many skilled technical jobs disappear, moving to nations with lower wages but good educational systems.  Here’s an optimistic look at the situation:  “Our White Collar Nation“, Marc Cenedella, posted at Stone, 5 January 2010.  Professional and technical jobs are our future!

The reality is less pleasant.  Two of the economy’s “overhead” sectors have provided much of the job growth in recent decades (there’s been no job growth in the past decade):  health care and government.  As described here:  “How The Government Payroll Replaced Goods-Producing Jobs“, Chart of the Day by the Business Insider, 5 January 2010.  One graph tells the story (part of it):

This includes almost 3 million Federal workers (but not the temps and contractors) and aprox 20 million State and local employees (aprox half are teachers).  This graph has been shown in various forms by many people since these lines crossed in 2007, and was discussed on this site in America passes a milestone! (20 January 2009).

The two key factors

Job creation depends on many factors, but two may prove decisive for the next few generations of Americans, a discontinuity with the happy news of the past 2 centuries.

The large populations of Asia have joined the modern world.  Educated and industrious, with far lower standards of living.  Competing with them will prove a challenge.  Even keeping our existing jobs might prove difficult, as it has during the past decade (with no net job creation).  Generating new jobs for our growing population might be our greatest task.

But a far more formidable competitor has appeared:  semi-intelligent machines, the next wave of mechanization.  The first proved a boon in almost every way.  The second wave might destroy so many jobs that it destabilizes our society.

Neither of these means certain doom.  Both require thought, planning, and coordinated action.  I have faith in our ability to handle these changes, as we have successfully done in the past.

Afterword

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37 thoughts on “A look at the engines of Amercan job creation

  1. Fabius: why do you have faith in a system that you have repeatedly named as increasingly non-resilient and inept? Or is it hope that you retain amongst the ruins of the Republic?
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    FM reply: Good question. It’s faith in the ideals of our Republic, and the America people’s ability to live up to them.

  2. A profession that could be massively automated is law. Television legal dramas notwithstanding, most work of most lawyers consists of the drafting and filing of routine documents, the contents of which are standardized and set forth in form books. Other task, such as title searches and determining whether cases remain good law, could be readily automated ( and quite possibly may have been since I last looked into the matter some ten odd years ago ).

    There will always be a need for Rumpole type barristers and the mob is by no means the only outfit that needs its consigliori; so some lawyers still will be needed. Furthermore, the legal profession is not going to help those who want to automate it out of existence. Still there are increasing numbers of unemployed lawyers out there, some of whom also have programing skills. So the clock is ticking.
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    FM reply: The British distinction is useful, between trial attorneys (barristers) and the paper-pushers (solicitors).

  3. The job problem has plagued many industrialized and developing countries (including China and India). We just have to deal with the same issue so that millions of young, jobless people do not cause social disorder.

  4. In response to Duncan’s post…(full disclosure, I am a lawyer). I don’t agree that much of what lawyers do can be automated.

    I note a couple things (amongst others): A machine simply cannot perform the litigation orientated tasks of taking a case that you want to use as precedent and arguing how the facts of your case apply; A machine cannot listen to a client and then provide legal advice appropriate to the facts of that particular matter; A machine cannot review a document and decide whether it is relevant or privileged and make a judgment to produce or not produce it in discovery; A form will can be useful for some people, but what if you need to know how to make a someone a life tenant, or whether the provisions you want will stand up in court?
    Most importantly, the essence of lawyering and resolving disputes is communication.

    I am not sure that machines can take lawyers much farther (except perhaps in terms of organization and staffing. The real threat to U.S. lawyers, besides the number of U.S. lawyers, is outsourcing certain things such as document review to India and other countries. Also, a lot of dictation is outsourced.

    With respect to automating whether a case is good law, both Lexis and Westlaw automically Shepardize a case and tell you if it is good law. However, you still need to make an independent judgment whether Westlaw or Lexis is right, whether the facts apply, and whether the Court was right.
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    FM reply: The threat to attorneys and finance is that society realizes much of their contribution is not worth the cost. Some is worth zero. Some is of negative benefit. This has long been know. As seen in “Henry IV, part 2”, Act 4, scene 2:

    DICK: The first thing we do, let’s kill all the lawyers.

  5. I must agree with PC Scipio. The American Republic went into steep decline after the Civil War and what remained has virtually disintegrated in the years since WWII with the rise of global authoritarian economic oligarchies, otherwise known as corporations, which have so insinuated themselves into government that the two are virtually indistinguishable. There no longer is an American Republic to restore.

    If there is any hopeful future for Americans, it will be in the creation of local and regional political and economic institutions independent of the federal government, and perhaps independent of many state governments as well–which are and have long been oligarchies masquerading as republics (e.g., my home state of Wyoming, beholden to the minerals and livestock industries)–not to mention independent of global corporations.

    The challenge is: will the oligarchies militarily try to suppress local/regional American independence movements and can these movements successfully defend themselves? We’re watching this dynamic play itself out in Afghanistan right now.
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    FM reply: A steep decline after the Civil War? Let’s replay that tape. We built the richest nation in history. Played the lead role in an alliance that fought and defeated fascism. Afterwards showed a degree of mercy to our defeated enemies almost without precedence in history, helping rebuild them, forging a new alliance with high ideas — which were, as always, only imperfectly implemented — but will probably inspire people for uncounted generations. This new alliance defeated Communism with a long period of resolute strength and restraint.

    Domestically we have had generations of advances in civil rights, along with our friends in Europe, that has few precedents in history. We sent men to the moon, among our other accomplishments in science and engineering.

    In brief you set a high bar. Perhaps when you get to Heaven you’ll find a political regime that meets your standards. Of course, that’s a perpetual absolute Monarchy. So you might be unhappen even in Heaven.

    “oligarchies militarily try to suppress local/regional American independence movements”

    There are no such movements, in real terms. Just some cranks indulging in fantasies, as an alternative to actual work to make our political machinery run.

  6. FM: “Good question. It’s faith in the ideals of our Republic, and the America people’s ability to live up to them.

    I lke the “answer” but like the “question” even more. The Ideals took a very long time to ferment in the ordinary American’s mind in the mid to late 1700’s and perhaps just as long to garner widespread support and to begin the process to implement them. And most importantly this assemblage of British subjects was blessed with EXCEPTIONAL individuals and even with these men, the movement for the federal Constitution sprang from the inadequacies of the Articles of Confederation. It was very messy getting to these “Ideals”.

    An ability to live up to ideals….we shall see, no doubt. Many Americans (and many who now hold power) have never seen a Today that was not better than Yesterday. True character is not seen until the first failure. We shall see, no doubt.

    This Post reminded me of the recent local “Business Journal” that was delivered on Friday. “Top Salesmen of 2009” Most were gents in the open collar, white shirt, suit coat uniform. Most were Software-type salesmen. Most were under 40. Most firms were probably funded by Tier One VCs. We shall see, no doubt.
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    FM reply: Remember that we need not invent the machinery — built after centuries of trial and error — but ony adapt it to our times and make it work.

  7. zemtar the lawyer in comment #4: “I note a couple things (amongst others): A machine simply cannot perform the litigation orientated tasks of taking a case that you want to use as precedent and arguing how the facts of your case apply; A machine cannot listen to a client and then provide legal advice appropriate to the facts of that particular matter; A machine cannot review a document and decide whether it is relevant or privileged and make a judgment to produce or not produce it in discovery; A form will can be useful for some people, but what if you need to know how to make a someone a life tenant, or whether the provisions you want will stand up in court? Most importantly, the essence of lawyering and resolving disputes is communication.”

    As I said, the legal profession is not going cooperate in efforts to automate it and your post supports that thesis.

    Rather than debate the points you have raised, I instead shall refer you to the relationship between the Mexican legal system, both judiciary and lawyers, on the one hand, and its various cartels, on the other. For the brutal truth is that ultimately the United States legal system also is going to be riding either that sort of a tiger or something equally vigorous. And the fact is that if Shorty Guzman wants to make someone a life tenant, any document that pleases him would do.

    A prudent judiciary in such an environment is going to have more important things to do than to scrutinize every cranked out deed and will that gets filed.
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    FM reply: Let’s hope you are wrong, and the US legal system does not ride a tiger-like social breakdown like that of our Mexican cousins. As a means of shaking off our legal parasites, it’s too painful.

  8. Actually, the situation I’m describing pretty much describes what led to the first American Republic. That’s our only hope. The bar’s set no higher than it was in 1776.

    When you talk about being the richest nation on earth, let’s not forget that that wealth came out of the conquest and theft of lands and resources from people whose ancestors came across Berengia thousands of years ago to first populate North America and then out of the historically unprecedented exploitation, pollution, and degradation of those resources that spawned Manifest Destiny. Maybe living where you do you don’t see it. Here on the Rez, here in the West, I see it all around me. Civil rights didn’t make it to the Indian Tribes, that’s for sure, and water, soils, forests, wildlife are worse off now than they ever have been in American history.

    Defeating fascism, and then communism, which mostly collapsed from its own inherent contradictions, we established a rapacious, mindless empire that now has now strayed so far from our republican ideals that Paradise is Lost, never to be Regained (apologies to Milton).

    And I think it said in the Declaration of Independence our inalienable rights were “life, liberty, and the pursuit of happiness”–not the pursuit of wealth and property. So much wealth, so much unhappiness, so little liberty. Wall Street’s as much a prison as Sing Sing, although perhaps kinder, gentler …
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    FM reply: I have no idea what any of this means. My guess it means nothing.

    (1) “the situation I’m describing pretty much describes what led to the first American Republic”
    You didn’t describe a situation. And I don’t see the parallels between then and now. To cite just one difference, we have elections.

    (2) “let’s not forget that that wealth came out of the conquest and theft of lands”
    No it didn’t. Every nation settled by Europeans had a similar conquest. Latin and South America, Australia, etc. We did much more with this land, this opportunity.

    (3) “and water, soils, forests, wildlife are worse off now than they ever have been in American history”
    False. Most are in better condition than they were in 1960. Almost every form of US air and water pollution has improved. Overall (nationally) forests are increasing (look at New England in 1920 and now). Most forms of wildlife are improving (of course, with too many exceptions).

    (4) “So much wealth, so much unhappiness, so little liberty”
    I don’t know what your standards and metrics are. I suspect they’re imaginary.

    (5) “Wall Street’s as much a prison as Sing Sing”
    When you die you’ll (perhaps) go to a land that meets your high standards. But why should we take this nonsense seriously?

  9. Fabius, I agree fully with your thesis, that we face twin challenges associated with the modernization of Asia and the rise of ever-more capable “semi-intelligent” machines. The former concern me much more than the latter. Why? Because they are linked. Eamonn Fingleton, in his book (now about ten years old) “In Praise of Hard Industries: Why Why Manufacturing, Not the Information Economy, Is the key to Future Prosperity,” noted that our foreign competitors in Germany, Japan, China and India, have invested heavily in industries whose products are critical to modern manufacturing, i.e. the complex and enormously expensive chip makers employed to manufacture ICs, or perhaps the advanced supercomputers and gene sequencers needed to conduct basic biochemical and genetic R&D. India and China are turning out many engineers and scientists, while we increasingly do not. Thus, our competitors have positioned themselves not only to make these strategic technologies by investing in plant and equipment and infrastructure, they have trained the technical people needed to staff these companies.

    What are we doing? Training more lawyers and hedge fund managers, that’s what. Yes, society needs such people (as much as I hate to admit it) but the tail is wagging the dog; a society that relies on others to make the things it needs to survive and thrive, cannot long remain prosperous. Worse yet, it risks its freedom.

    As you correctly noted, increasing productivity due to “intelligent machines” and the surplus of goods and services on world markets due in part to competitors rising in Asia, and the global economic downturn, pose a challenging and possibly dangerous time for the civilized world. The historical parallel is to be found in the late 1800s and early 1900s, when the first and second industrial revolutions flooded global markets with goods few people could afford. Nations such as Japan pursued expansionist policies (Japan was far from the only one) into places like Manchuria, in part to open new markets for their goods, and also to harvest strategic resources and exploit low-cost labor. The result was war, in no small part because of these problems.

    The message for our nation is that we need to become, again as we were in the past, a nation that builds and makes things. Conversely, we also need to develop and foster a culture based not only on consumption and income, but on social good and meaningful work. If corporations cannot/will not employ “excess” labor, then the government should be the employer of last resort. Personally, I’d prefer the former, but in no circumstances can we allow vast numbers of unemployed people to loiter, unused, cast aside as human detritus. To follow this path risks what Bill Lind calls “fourth generation war on American soil,” or at the very least, Great Depression Pt 2. Neither eventuality should cheer any of us.

    Not only is finding work for those able and willing to do it good policy, it is a moral imperative. Our economy should exist to serve us, human beings, not visa versa.
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    FM reply: Another take on this problem is “How The Housing Bubble Destroyed Our Future“, John Carney, Business Insider, 5 January 2010 — Excerpt:

    “What’s more, there was so much money to be made in derivatives and credit — largely arising from the underlying housing boom — that many of the smartest people got drawn into these areas rather than tech innovation. Basically, we got lots of questionable financial innovation instead of technological, medical, or environmental innovation.”

  10. FM: “Remember that we need not invent the machinery — built after centuries of trial and error — but ony adapt it to our times and make it work.

    Point well-taken. In times of trouble, the best reference we have is the the lessons inculcated at the deepest. It will be interesting; the populace is much wiser than we imagine and the ideals are deep.

    Jobs ultimately matter. Recall when “work”, a job well-done, in and of itself was a blessing? Most do not. They will rediscover, soon, I suspect and THAT may be the tipping point.

  11. Actually FM Robert Hoskins has a point. Keynes asked the question, what happens when we all become rich (obviously ignoring income/wealth inequalities), but rich as a society .. then what next? Do we become a Federation where the aspiration is “to become the best person you can be” or just hamsters on speed running the wheel? A Star Trek vs a Blade Runner future.

    Me I’d like more holidays (though I, coming from Oz have already much more than US people) but I’d like more, like German levels . I really don’t need anything more. I have a nice house, great tools (sorry guy thing), a wonderful (though 20 years old) 4WD that has taken me all around Australia. A WRX. And more importantly a wife who is alive (thanks to our great health system here) and 2 great dogs. I have friends, good wine, good arguments, reasonably (to date) healthy. What more do I want? I really dont want anyone here to be poor or dying when they don’t need to.

    And I can say this as a person who came from a poot background and has had some hard times over the years.

    So there is a limit to consumption. Me I’d happily trade off some salary for double my holidays. Plus this gives opportunities for youngsters to get work experience and money and my No 2 to learn my job. Win win I say. I want to spend less time working and more time out in the bush. I want the time to be able to start playing the Blues on my Fathers Gibson again. I’d prefer to spend more time with friends.

    I suspect most people are like me, rather than those people who are money/power drug addicts. And that is what they are, sick. Happy to pay my taxes, for health, for education, for infrasturcture development/maintenance, science, R&D, etc. Just don’t want some corrupt politician giving away my money to someone to stuff up everything so they can get a kickback.

    And I want to be free. Free to make my own decisions. Free to (say) support Antiwar.com or post at FM without some Govt clown kicking my door down at 3am. Free to be me. I accept that as a citizen I have responsibilties. I have a responsability to do the right thing. You know when someone is being beaten outside my door I go out there with the dogs and stop it. That is our collective responsibility. You want the good times then you have to accept responsibility.

    Sadly you/we have a bunch of ‘elite’ junkies. Addicted to money and power, the worst drugs of all. Throw these clowns out I say. Hmm tar.
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    FM reply: By the numbers.

    (1) I dont’ see how you extract this content from RH’s comment.

    (2) The article by Keynes to which you refer is “Economic possibilities for our grandchildren” by John Maynard Keynes, originally published in The Nation and Athenœum, 11 and 18 October 1930. I published a long excerpt from it here.

    (3) How nice that you’re so well off. This just in… America has lots of working poor, struggling hard to get ahead against big odds — and too often failing. I suggest you read Barbara Ehrenreich’s “The Diary“ (cited in today’s FM newswire). And beyond that lie the even poor people in the 3rd world. Rather than worrying what we’ll do in some future fantasy world, I suggest these people deserve our attention.

    (4) “Free to support Antiwar.com or post at FM without some Govt clown kicking my door down at 3am.”

    You should move to the USA if things are that bad in Australia. We don’t have those problems.

  12. Good post, PM. And it’s generated some great comments. The only thing I have to add to the discussion is that I noticed that your “Government Employees vs. Goods-Producing Employees” chart doesn’t seem to include the military in the government employees category. I’d be very interested in seeing what an amended chart would show.

  13. Nonsense comments by Fabius (parasites) and Duncan (Mexican drug cartels)? If we have a nation ruled by law, then legal experts are needed to make the system work. Without the legal systems, how do you propose that disputes be settled? Guns at high noon? Moreover, the abundance of lawyers in the United States is a good thing. Guess what happens in China when the government or some corporation violates your rights? Nothing. You are roundly screwed. Here you can find a lawyer and try to seek justice or some approximation of it.

    I really do not see the lawyer–parasite comparison. No one forces you to hire a lawyer. The absurdity of the argument is, in fact pointed out in the excerpt from Shakespear. The world without lawyers is a fantasy land where there is no money, and no man’s word is bond.

    CADE

    I thank you, good people: there shall be no money;
    all shall eat and drink on my score; and I will
    apparel them all in one livery, that they may agree
    like brothers and worship me their lord.

    DICK : The first thing we do, let’s kill all the lawyers.

    CADE:

    Nay, that I mean to do. Is not this a lamentable
    thing, that of the skin of an innocent lamb should
    be made parchment? that parchment, being scribbled
    o’er, should undo a man? Some say the bee stings:
    but I say, ’tis the bee’s wax; for I did but seal
    once to a thing, and I was never mine own man
    since. How now! who’s there?
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    FM reply: You’re missing the point. We’re all aware of the need for lawyers. Like most things in the real world, the question is over their numbers. I doubt that we need so many, nor that their activities consume so much of our economic activity.

  14. Sorry FM, you’re being ideological here, not factual. This is a real weakness of yours; you can’t see the box you’ve sat yourself in, that somehow the American Republic is still around and that it can be reformed to its original, or something approximating it, by participating in the system. We have elections, you say? Just what did the last round of elections achieve for the American people?

    1. I most certainly was describing a process–the American Republic was built upon a slow process of experimentation with independence from the Crown in all its manifestations, a process well described by Hannah Arendt in On Revolution. I propose a similar process directed toward the United States with the development of new local and regional institutions. It’s called secession.

    2. Just because other European powers also stole land and resources from indigenous peoples in the New World doesn’t make our thefts of land and resources any more noble because “we did more with it.” Yes, we created more wealth with it than Canada or Australia, and consequently we created more enslavement (e.g. industrial employment)and environmental damage (grazing, logging, mining, building dams and irrigation and flood control systems that now are failing) that, accept it or not, is still continuing, as with tar sands development up in Alberta (yes I know it’s in Canada, but tar sands is particularly odious, as I think a previous post of yours pointed out), which is worse when you see it up close than any reporter can describe, or natural gas/coalbed methane development here in Wyoming. If you live on the east coast, which I suspect you do, consider the proposals to drill and frack for natural gas in the Hudson River Valley above New York City. Are you looking forward to that? I should hope not.

    3. The fact is, FM, we did steal this land, every acre of it from sea to shining sea; ask any Native American what he or she thinks about it. We even came up with a legal term for what we were stealing, aboriginal title, so that we could pretend an orderly process of various and sundry treaties invoking transfer of title from people who had no concept of title, who in fact, did not intend to convey what the treaties said was conveyed. Worse, to make our opportunities, we destroyed theirs, totally, by deliberate policy (e.g., the Reservation system). Then we continued to steal from the Reservations; check out the Elouise Cobell (Blackfeet Nation) lawsuit against the Department of Interior for recovery of stolen funds, mostly from the sale of mineral leases. Or look up the Dawes Act of 1887, which allotted land in homestead sizes of 160 acres to individual Indians, land that could subsequently be alienated to non-Indians for a bottle of whiskey. I live on Dawes Act land stolen from the Eastern Shoshone tribe.

    4. As a professional naturalist and conservationist who’s worked natural resource issues for almost 20 years since leaving active duty, I’d say your comment that nature is in better shape now than in 1960 is horsedung. You talk, for example, about forests increasing in areal extent. That doesn’t speak to their ecological integrity; many forests, especially in the southeast where I grew up, are tree farms. Tree farms are simplified agri-ecosystems that mock biodivesity. Think again, my friend. And as far as wildlife is concerned, most forms are not better off. For example, we are seeing significant expansion of diseases in many forms of wildlife, as with the spread of fungus among the bats of New England, or the spread of chronic wasting disease, a transmissible spongiform encephalopathy that affects cervids, throughout the northeast, the midwest, and the west. It is of particular concern here in Wyoming, which is the epicenter of the disease along with Colorado.

    5. My metrics for happiness are no different from Jefferson’s–were his imaginary? I think not.

    In sum, FM, I’m not in the habit of speaking nonsense. I think rather you’re in the habit of looking for it, and in looking for it, find it everywhere, whether it’s truly nonsense or not.
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    FM reply: By the numbers.

    (1) “I most certainly was describing a process
    Perhaps I’m confused because you said you were describing a situation (“the situation I’m describing pretty much”) –although in fact you did not describe anything. Now you talk of a process, so I still have no idea as to your point.

    (2) “It’s called secession.”
    That’s nice. I’ve just lost interest. It’s a subject of zero interest to me (and most people), but will slog through the rest.

    (3) “we did steal this land,”
    Everybody stoled the land they’re on, with a few exceptions (e.g., Intuit, Australian aborigines). Probably Homo Sapiens stole the world from the Neanderthals. It’s not a significant moral point since the perps and victims are all dead. We’re trying to build a world that moves beyond war as the primary mode of progress.

    (4) ” I’d say your comment that nature is in better shape now than in 1960 is horsedung”
    It’s true nonetheless. The specifics you cite a minor compared to the massive decreases in water and air pollution (which you ignore). And progress continues.

    (5) “You talk, for example, about forests increasing in areal extent. That doesn’t speak to their ecological integrity; many forests, especially in the southeast where I grew up, are tree farms.”
    We’ve moved from deforestation to forest growth. Many areas — such as the northeast — have natural forests growing on land that was clear-cut away by 1920. You said that things were “worse off now than they ever have been in American history”. That’s false. The trough was sometime in the early 1960’s, before the birth of the modern environmentalist movement. You reply is in effect that things are not perfect. True but irrelevant to your original claim.

    (5) “My metrics for happiness are no different from Jefferson’s”
    I’m not discussing “metrics for happiness”, but your factual statements about the real world.

    (6) “I’m not in the habit of speaking nonsense”
    Perhaps these comments are an exception.

  15. Note this article from the Guardian on the poverty of American Indian reservations. I find it absolutely factual. “Obama’s Indian problem“, 11 January 2010.
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    FM reply: Yes, the world’s an imperfect place. Lots of poverty and despair in America, and in the world. What’s your point?

    Wait, now I get it! By “secession” you mean we all leave and give the land back to the Indians. I agree, that’s the only truly moral solution.

  16. “If we have a nation ruled by law, then legal experts are needed to make the system work. Without the legal systems, how do you propose that disputes be settled? Guns at high noon?”

    The “rule of law” which you celebrate has, among other things, been cited by Lawrence Summers as justification for AIG’s bonuses and what not. The term “draconian” refers specifically to a legal code; and the German courts upheld everything the Nazi’s did.

    Your references to Shakespeare, your vague unverifiable generalities, your lack of hard facts illustrate how the so-called “rule of law” is really “rule of rhetoric” A lot of big empty words that mean nothing. The point of the American legal system is to make oneself look and sound good, not to accomplish something.

    Other countries now function with legal professions and judiciaries that are far less extensive than the United States. The current status of the US legal profession is yet another instance of the American exceptionalism which we celebrate in this blog.

    The United States prior to about 1965 functioned with a far less extensive legal system than it now has.

    Notwithstanding the former, the world is now changing. So “experts” on the current legal system, like experts on Roman law or Church canon law, are going to become marginal.
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    FM reply: While I agree with the gist of this, the specifics are disturbing.

    (1) “The “rule of law” which you celebrate has, among other things, been cited by Lawrence Summers as justification for AIG’s bonuses and what not.”
    And your point is? Every good thing as been misused either for evil or as an excuse for evil.

    (2) “so-called “rule of law” is really “rule of rhetoric” A lot of big empty words that mean nothing.”
    That cynical view I utterly reject. What do you prefer to substitute in its place? The ideal of perfection is the enemy of the good…

  17. It may well be the case that there are too many lawyers out there (especially new ones who are facing a horrible job market).

    I fail to see your argument that lawyers consume an unjustified amount of “economic activity.” what is your basis for that statement? Where are the facts supporting the claim that over lawyering is a problem in the U.S.? I certainly see that lack of competent lawyers and a respectable legal system is a great problem in many developing countries, but not the flipside.

  18. Here’s the thing about lawyers, similar also to cops & prison guards — the ‘goods’ they produce are mostly not consumed in a ‘win – win’ positive sum transaction. Most private (=peaceful), voluntary transactions happen by mutual agreement, mutual benefit, win-win. They are ALL positive sum transactions. With every lawyers’ lawsuit, there is a ‘win-lose’ situation. When somebody is truly guilty, justice requires them to lose, and when the guilty do lose, society overall benefits. Civilization requires some form of reasonable justice — but not too expensive.
    Yet when innocents, like innocent doctors, are losing in court (yes to tort reform), the win that plaintiffs win causes a total social negative.
    We probably passed the socially optimal amount of law & # lawyers long ago. The purpose of ‘rule of law’ is to achieve better justice, not to create a society of ‘rule by fine print technicalities’.

    Doing good, and being good, because of good culture, works for civilization. Requiring folks to do good/ be good, thru nanny-state over-regulations & excessive laws will not work so well. Higher enforcement costs means less total benefit, and even net negative benefit.

    All gov’t programs are ‘win-lose’ at least in the forced funding by taxes; at some low level there is net social benefit, but at some higher level (I think about 10% plus defense) excess gov’t becomes a social negative. We probably went past that point in about 1983, when Reagan’s shrinking of the gov’t ended.

    The US military is a huge cost. With huge world, civilization benefits. But India, and even China, have hugely benefited by the US paid-for post WW II boom and relative & increasing peace plus free trade. They would have benefitted more if the racist – imperialist colonialism which was correctly fought off, had not been so closely tied to capitalism, allowing the anti-imperialists to be anti-capitalists.

    I understand the robots are expected in Japan to allow the Japanese to live as well as their parents with far less work. I suspect that is true, but then wealth ownership/ control become even more relatively important than income distribution. And a small majority (large minority?) of Americans have essentially no saved wealth.

    In order to keep peace, the rich and powerful in America will certainly provide enough food, shelter, & clothing so that massive poverty to US citizens is unlikely to be seen in our lifetimes.
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    FM reply: We should be grateful that Tom does not demand that the rest of the world thank us for the sun rising.

    (1) “US paid-for post WW II boom”
    Winner of “most absurd statement in this thread.”

    (2) “The US military is a huge cost. With huge world, civilization benefits.”
    During WWI, probably not. During WWII, certainly. During the cold war, agreed. Afterwards, I doubt you can make any reasonable case for that statement.

  19. FM,

    Since you’ve lost interest, what’s the point of having a discussion?

    I do find it interesting that you know much more about the ecological health of North America–its forests, its ranges, its waters, its wildlife–than I do. I wonder what I missed over the last 20 years of doing everything I could do to prevent things from getting worse, and watching them nevertheless get worse, whether forest, range, water, or wildlife. Pollution is better than 1960 you say–have you visited Denver and the Colorado Rocky Mountain front range lately? How about Albuquerque, or Las Vegas, or El Paso, or Tuscon, or Phoenix?

    I will add that you’ve proven to my satisfaction that your ignorance of ecological and other natural sciences is damn near complete. The disease issue most certainly not a minor one. I would recommend you spend some time on the US Geological Survey website to test your claim that things are better than in 1960 is in fact true. You most certainly will find the claim wanting–severely wanting. But I can’t prove it here in 250 words or less.

    And as for the issue of theft of land, my still living Native friends most certainly don’t consider it an insignificant moral point. That is, the perps and victims are still very much alive. You want to challenge that, I suggest you spend some real time on an Indian reservation instead of just reading about them.
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    FM reply: Bluster bluster bluster. Perhaps you should google Newsweek articles from the early 1980’s, when the progress fighting pollution became obvious. Or read some EPA reports. Or go to the Great Lakes or other American waterways, once toxic dumps — now far cleaner. Most probably you’ll continue shouting “Ya Ya Ya”.

    “you’ve proven to my satisfaction that your ignorance of ecological and other natural sciences is damn near complete … have you visited Denver and the Colorado Rocky Mountain front range lately? How about Albuquerque, or Las Vegas, or El Paso, or Tuscon, or Phoenix?”

    I said that things were improving in American, not in every specific unit. Areas undergoing rapid population growth experience ecological damage. But that is a small fraction of America’s area. So let’s test my knowledge.

    I said forest cover was increasing, a significant reversal of the centuries long deforesting of America. From p14 of the US Forest service report “Forest Resources of the US, 2007”: “Forest land across the Nation has increased by 4% since 1987”. From page 30: “Today, net annual forest growth exceeds removals by more than 70%. Because of this favorable growth/harvest situation, which has existed since about the 1940s (Frederick and Sedjo 1991), biomass in U.S. forests today is 50% greater per acre than it was in 1953.”

    The data:
    * 1630: 1,045 million acres
    * 1907: 759
    * 1987: 739
    * 1997: 747
    * 2007: 751

    “The disease issue most certainly not a minor one”
    Duh. Of course it’s serious, although the 2007 FS report places no special emphasis on it (the table on p49 show no trend in insect/disease defoliation and mortality). It’s just minor relative to the subject under discussion, the reversal of 3 centuries of US deforestation. This is of course your primary mode of debate, which makes it a waste of time.
    * You make outrageous claim (forest shrinking)
    * I note that it is objectively false (forest area is growing).
    * You correctly note that problems remain, so we’re not in Heaven (“about forests increasing in areal extent. That doesn’t speak to their ecological integrity”).
    * Duh. We knew that problems remain. (For an example, see “North American tree deaths accelerate“, Nature, 22 January 2009

    Another example of this, same paragraph:
    You: Forest shrinking!
    Me: No, they’re re-growing.
    You: “many forests, especially in the southeast where I grew up, are tree farms.”
    Me: They’re still forests, which is the subject here. Also, your implication is wrong. Tree farming in both the Southeast and total US peaked in 1988. As of 2003 total planted area was down by 58% in the Southeast and 47% in the total US — while total forest area has increased.

    “my still living Native friends most certainly don’t consider it an insignificant moral point”
    So? Build a time machine and go punish the perps? Give the land back?

    “the perps and victims are still very much alive.”

    This is really a waste of time, a fine example of sophmoric thinking. Most people understand that the injustices of the past linger into our time. Slavery, for example. These historical causes are of diagnostic importance, but not our problems because the past is beyond our ability to change. We’re responsible for the inequality of opportunity among today’s citizens, whatever the causes, because that is in our power to change. Since the New Deal and Great Society attempts have been made. Inadequate in scope and size, certainly. Methodologically flawed, equally uncertain — probably inevitable given our limited knowledge of social engineering. But your jeremiads are IMO no contribution to this effort.

  20. Response to Duncan, who is no longer pulling punches…

    The “rule of law” which you celebrate has, among other things, been cited by Lawrence Summers as justification for AIG’s bonuses and what not. The term “draconian” refers specifically to a legal code; and the German courts upheld everything the Nazi’s did.

    (I don’t see the point. There are, of course, bad and unjust laws. In America, many such laws are supposed to be trumped by the Constitution and Bill of Rights. However, without law and an extensive legal system, you are left with the “wild west.” For example, I have a lot of experience living abroad in China, and I can tell you that due, in a large part, to the weaknesses of the legal system, people there are at the mercy of unscrupulous government officials and others because there is simply no redress to be had in the Court system or otherwise. In some sense, your comment supports my position. If in fact the German Courts upheld illegal acts by the Nazis, it merely reinforces the importance of having a strong independent judiciary and bar to check abuse. No doubt there are good laws and bad laws, but the rule of law is essential in defining property rights and settling disputes. In places lacking the rule of law, those things are resolved by more unsavory means. The concept has been defined by others as: 1. The government and its officials and agents are accountable under the law; 2. The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property; 3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient; 4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.)

    Your references to Shakespeare, your vague unverifiable generalities, your lack of hard facts illustrate how the so-called “rule of law” is really “rule of rhetoric” A lot of big empty words that mean nothing. The point of the American legal system is to make oneself look and sound good, not to accomplish something.

    (The reference to Shakespear was a response to FM’s citation. The rest of this paragraph is BS.)

    Other countries now function with legal professions and judiciaries that are far less extensive than the United States. The current status of the US legal profession is yet another instance of the American exceptionalism which we celebrate in this blog. (What countries do that? Europe has a civil system which is somewhat different from the U.S. system. I would say that it does not embody the same “free market” freedom that the U.S. system embodies. So what? Does the Europe produce better results or more justice?)

    The United States prior to about 1965 functioned with a far less extensive legal system than it now has. (The legal system is basically the same now as it was in 1965, with the same rules and so on. While there are certainly more regulations now, there is no justification for your statement. In 1965, there will still State and Federal Courts, and there were administrative courts.)
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    FM reply: Another nation with a legal system from which we could learn much — Japan! Great point about American exceptionalism, which in practice means a refusal to learn from other societies.

  21. Mr. Kinder: As a general proposition, do you believe that there should be a judicial branch of government? I am not being flippant, as I believe that you and 99.9999999999% of everyone else would answer in the affirmative. However, I do believe that some people do not want the judiciary to be a co-equal branch of government. Do you? If not, I am interested in knowing if you have any suggestions for improving it other than reducing the number of laws and lawyers.
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    FM reply: This is a nonsensical strawman arguement. To say that we should have fewer attorneys (i.e., like Japan) does not mean disbelief in the utility of a judical system.

  22. I find most of these economic pot dreams dreary and contaminated with partial data, fantasy data, and just plain old wishful thinking. Applying only to economics (jobs and shit)the only way out of our current malaise is……increase demand. None of the government solutions can do this because government fills only only manufactured needs. We are looking at new real demand right in the face with the sudden desire for 3D television. This will grow from nothing to a billion or so dollars in a very few years, BUT this demand will be filled by starvation wage economies unless we act to prevent it. It’s hard to see the actual new demand on any horizon; it could be the electric fork, the sexually powered home electric system, or even something like the sudden appearance of real global cooling which might be a real bonanza. Demand doesn’t come from increasing unemployment benefits, more and more government “services” that nobody but politicians and free loaders want, or any organized government program. Real demand is an organic process that is out of our control. What can we really do? Get involved in a really big war solution, after all it was Hitler who got us out of the Depression of the 30s.
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    FM reply: This is not accurate on several counts.

    (1) “None of the government solutions can do this because government fills only only manufactured needs.”

    You mean unemployment payments, food stamps, and medicaid? In fact, as has been known for 60 years, government fiscal stimulus provides first aid to an economy in severe contraction. It mitigates the magniture and suffering in the downturn. I am amazed that people still deny this. People with closed eyes signing “Ya Ya Ya.” All those professors teaching Econ 101 must cry reading things like this.

    (2) “Get involved in a really big war solution,”

    Yes, WWII was a massive fiscal stimulus to the US economy. But, as Keynes said, the stimulus need not come from war. It can come from productive government investment in useful system — such as transportation, environmental (e.g., sewage treatment), and commucications.

  23. Suggestion for FM’s next post…

    Those who hate attorneys and the robots who provide them with superior legal advice.

  24. “And as for the issue of theft of land, my still living Native friends most certainly don’t consider it an insignificant moral point. That is, the perps and victims are still very much alive. You want to challenge that, I suggest you spend some real time on an Indian reservation instead of just reading about them.”

    Theft of “my” land? Now we’re getting down to the heart of the matter. How old are you? I ask because I wager that you are young enough that you have never experienced the theft, deceit, injustices, etc. which you claim are so common in this country. Rather, you feel a sense of greivance for what was done (or alleged to have been done) to your forebearers… even though you have never personally experienced the injustices about which you are so inflamed. Call it greivance by proxy, similar to angry blacks whose ancestors were victimized by long-dead slaveholders, who choose to ignore the fact that they have the good fortune to live in a just if imperfect nation, one which has done much to remedy the historical injustices committed in the past, and which still offers the prospect of a good life, if one will only quit complaining and seize the opportunity. This “victims are us” stuff is getting old… just can’t work up much sympathy for your plight, sorry.

    History is replete with examples of man’s imhumanity to man; if wasn’t the “evil white man” from Europe, it would have been someone else. And please don’t hand me this idealized “Dances with Wolves” BS about how beneviolent the Native Americans were; weren’t those the same folks who -slow-roasted captured settlers and/or soldiers over a hot fire? In short, isn’t it time to ditch the self-pity and get on with life today?
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    FM reply: I agree. The people who committed these things died long ago, as did both their victims and their deeds — both good and ill. We play the cards that we inherit, just as they did. These attempts to gain unearned moral stature by condemning long-ago deeds are despicable, IMO.

  25. Zemtar wrote, “I really do not see the lawyer–parasite comparison. No one forces you to hire a lawyer. The absurdity of the argument is, in fact pointed out in the excerpt from Shakespear. The world without lawyers is a fantasy land where there is no money, and no man’s word is bond.”

    No one ‘forces you’ to hire a lawyer? If you mean at gunpoint, no… but you are splitting hairs. If one is served with a legal proceeding, and one isn’t an attorney, one is forced to employ a lawyer unless one does not mind the potential of losing one’s assets and good name in an adverse judgment. The plain fact is that modern-day Americans no longer know how to settle disputes extrajudicially, and thus recourse to the courts. Neither do we accept, as our parents and grandparents did, the role of chance in life, simple bad luck… the idea that sometimes no one is at fault for a given misfortune. If someone slips and falls in the snow on the sidewalk near my home and is injured, through no fault of my own, I can be – against my will – forced into defending myself against a lawsuit, and subject to the charges thereto, simply because someone was clumsy. Since under our system, the “loser” does not pay, there is little disincentive to ‘going fishing’ for lawsuits. For that reason, I have to carry a special rider in my insurance, against such events, money that could be better-used somewhere else, for more productive purposes.

    “I fail to see your argument that lawyers consume an unjustified amount of “economic activity.” what is your basis for that statement? Where are the facts supporting the claim that over lawyering is a problem in the U.S.?”

    Clearly, you have never worked in a big-city hospital, as I have. The burden of paperwork, red tape, CYA regulations and the like imposed on doctors and nurses because of the threat of legal action has to be seen to be believed. “Defensive medicine” is a reality. RE: your comment on how essential lawyers are to the smooth functioning of society; maybe so, but good luck getting your legal counsel to repair that aortic aneurism or remove that portion of cancerous colon.

    An unspecified, but almostly certainly large, percentage of legal actions in America are simple rent-seeking (read parasitic) behavior. Tune into late-night TV sometime, and look at all of the ads for attorneys seeking people who have taken a specific drug, or have a structured settlement, or need help prying money out of the social security administration… all for a nice 30% fee after the trial, of course.

    Do lawyers have a benefit to society? Yes, but strictly in the reactionary sense of the word. Like the police, they come onto the scene only after the damage has been done, and things need cleaning up. Last I checked, lawyers don’t build, design, fabricate, engineer or otherwise “make” anything – except red tape for everyone else.

    I do have a suggestion as to a truly productive activity inwhich members of the legal profession could engage, one whose accomplishment would greatly impress me and cause a reevaluation of my cynical views vis-a-vis attorneys: start working on reducing the size and complexity of the legal code, and thereby its burden on the rest of us. Now THAT would impress me.

  26. Pete: “Do lawyers have a benefit to society? Yes, but strictly in the reactionary sense of the word. Like the police, they come onto the scene only after the damage has been done, and things need cleaning up. Last I checked, lawyers don’t build, design, fabricate, engineer or otherwise “make” anything – except red tape for everyone else.”

    Obviously the reactionary element is critical to what lawyers do. Disputes arise and they need to be resolved. While lawyers, obviously do not manufacture goods, we do more than the reactionary. In fact, much of what (at least I do), involves advising a client so that they don’t get into disputes or involves resolving disputes before they metastisize into messy legal action.

    Its not a perfect system by any means, but I am at a loss to figure out a better system. When people disagree on the facts, it needs to be worked out somehow. In some sense, the high cost of most litigation actually discourages lawsuits and settlements because, hey, nobody wants to waste money on the lawyers.

    With respect to a “large percentage” of legal action being “rent seeking,” I don’t know the statistics. However, in my experience, the vast majority is not. Someone is injured by an incompetent doctor, contractor, or someone else, and wants to be compensated. That is not rent seeking. Also, I think you would be surprised by how many lawsuits happen because the “bad guy” refuses to deal with the person at all until they are brought to court.

    In any event, the reality is that most lawyers are not rent seekers, and that our interactions with clients are not necessarily like you would envision. They are often close, with a large amount of trust. Moreover, most lawyers take their ethical duties, including the duty not to file frivolous lawsuits, very seriously.

    I think there is a knee jerk reaction because undoubtedly it sucks to be sued. It is disruptive and expensive. I am not sure what the alternative is, until we build a robot that can perfectly resolve disputes without bias, while still keeping in sight goals like justice and equity.

    What should someone do if they are hit by a car and seriously injured (btw, you were in the crosswalk while the hand was red, so you were contributorily at fault)? Sit there and take it like a man? No, you or anyone else would file a lawsuit.
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    FM reply: This is an extremely parochial viewpoint. Look at the legal systems in continential Europe and Japan. They get by with far fewer attorneys.

  27. My last comment on this, as I don’t want to hijack FM; I am always surprised at the hostility directed at lawyers. We are not any different than any other specialists. Sure, you could do your taxes (accountant) yourself, build your own house (engineer), do your own heart surgery (maybe not on yourself, but at least on a family member), or anything else, but the fact is that without specialized knowledge, there is a good chance that you will screw it up, and it is time consuming and complicated.

    Finally, last I checked, there are no jury verdicts without a box with between 12 and 6 random citizens in it making the award. What could be more American than that?
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    FM reply: Think hard about this. The reason for the hostility is obvious to most people.

  28. To fabius # 28: The oversupply of lawyers is a hot topic in the industry. I read an interesting article that I cannot find a link to. That article noted that the vast majority of Americans do not have the legal help they need, however, and that the oversupply is a good thing if it provides lower cost services for such persons. The problem is that the cost of undergraduate coupled with law school (could easily top $200k depending on the schools) is so high, that it basically requires graduates to look for higher paying work.
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    FM reply: That is discussed in the comments. In fact the oversupply does not increase availabilty of legal services to the majority of Americans, expcept in a small fraction of cases (i.e., class action with deep-pocket defendents). If you are unjustly prosectuted by the DA or sued by a rich guy, you’re still screwed.

  29. FM reply at No. 27: “Think hard about this. The reason for the hostility is obvious to most people.

    Most people? A good lawyer routinely screens potential clients for this hostility at the initial meeting. If there is any hint of it, a good lawyer will turn down the case/client, regardless of how much money is offered or how large a fee might be earned.

    “You’re the “n” th lawyer I’ve talked to about my case.” “It’s the principle of it.” “The opponent has horns and a tail.” “The case is really simple and should be a snap to win.”

    It’s a waste of time to try to figure out what’s going on with people like this. It doesn’t matter how compelling their story. Just politely decline and then run like hell, because the clever ones figure out after a while why they are being turned down and then hide the obvious red flags. No, it’s not most people that are hostile.
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    FM reply: The specifics you mention (about clients’ cases) are unrelated to the subject under discussion — hostility to the excessive role of attorneys in our society, and to some aspects of their behavior. I suspect that this hostility is more widespread than you believe, but don’t have evidence.

  30. Zemtar wrote, “In any event, the reality is that most lawyers are not rent seekers, and that our interactions with clients are not necessarily like you would envision. They are often close, with a large amount of trust. Moreover, most lawyers take their ethical duties, including the duty not to file frivolous lawsuits, very seriously.”

    I’m sure there are a great many lawyers who take their professional obligations and ethical duties seriously; you sound like one of them. However, that in no way changes the dysfunctional nature of the legal system in our country, which as FM points out, compares so unfavorably with other nations in terms of cost, the number of lawsuits filed, number of attorneys practicing, and other metrics.

    More difficult to quantify, but very real, is the chilling effect of lawsuits on everyday life in this country. Believe it or not, there was a time in America when ladders didn’t have those absurd warnings and stickers to the effect that climbing a ladder is dangerous, or that it would not be wise to use a hairdryer in the bathtub. For the most part, people were taught those things, and were expected to behave accordingly. I am in my forties, and remember those days well; dove off the diving platform and high dive many times, loved it, and managed to survive the experience. Look around, how many pools have those things anymore? Very few. Why? fear of lawsuits, we’ve become a litigious society. We used to be a sensible society, one in which a warning would not be needed on a styrofoam cup full of hot coffee warning of the danger of burns if it was spilled, or that one should not hold said cup in one’s lap while driving. Not many years ago near my hometown, a guy with a list of priors (i.e. a lengthy rap sheet) drove drunk, and ended up crashing his car on the median. He was paralyzed, and successfully sued the city for millions in damages for improperly landscaping the divider. None of the foregoing is news to anyone who knows Phillip K. Howard’s books on the danger to our way of life out-of-control litigation represents.

    Unless one is in deep denial, I fail to see how anyone can seriously dispute that our legal system, like so much else in America these days, is broken and badly in need of repair, if not modification and reform. Examined the number of volumes required to enclose the federal legal codes recently? It is, unless I miss my guess, an order of magnitude or more larger than fifty years ago. There are so many local, state and federal laws on the books, that each and every one of us is, by one recent estimate, in violation of 2-3 statutes on any given day.

    I won’t even get into the chilling effects of lawsuits on R&D, which I have also experienced firsthand. I am not fan of big pharma in many ways, but if you value any of the discoveries coming out of the labs and plants of the medical device and pharmaceutical products industry, you might wish to reconsider your unvarnished opinion of laws and lawyers. Drug development now costs billions; a cheap one takes hundreds of millions to bring to market and get past the FDA. There’s much more to that story also, but this post is too long already…

  31. Pete: “We used to be a sensible society, one in which a warning would not be needed on a styrofoam cup full of hot coffee warning of the danger of burns if it was spilled, or that one should not hold said cup in one’s lap while driving.”

    I agree with a lot in your comment at 6:56. However, the version of the McDonald’s coffee case you referenced is an urban legend. A number of people had been burnt before this incident. McDonalds settled those that complained without a suit being filed. But McDonalds did not reduce the temperature of its coffee. In other words McDonalds knew there was a problem with its coffee but did nothing. McDonalds then rejected a low-ball settlement demand made within the last 24 hours before trial.

    I have no idea why they made this decision, but they got hammered because of it. Mistakes like this happen all the time in litigation on both sides of a case. The irony of this is that the “personal responsibility” argument is used against injured people all the time: “stop whinning and take responsibility for your mistakes.” Shouldn’t it apply to the other side as well?

    However, the actual facts of the case are most interesting. The plaintiff wasn’t driving. she was the passenger. Additionally she suffered third degree burns on and around her privates, not just some “pinkness.” She’ll never forget that cup of coffee.

    This urban legend was cleverly created to appeal to a certain confirmatory bias some people have about the claims of injured people.
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    FM reply: Like so many complex issues these days, both sides convert them to narratives, surpressing discordent facts. In that limited sense, neither version of the case is accurate. But neither are sufficiently false IMO to be called urban legends. Some of the inconvenient facts Fred omits are discussed in this article at Overlawyered.

    “McDonalds knew there was a problem with its coffee but did nothing.”
    This is Fred’s flawed assumption, that products should have no “problems.” The world should be totally safe, with litigation for all accidents. People like hot coffee, 160-180 degrees. That’s why there is a warning on the cups (larger today than then, of course). As the above article mentions:

    There had been 700 complaints over hot coffee in the previous decade, which translates into a complaint rate of 1-in-24-million, with only a small fraction of the complaints reflecting injuries as severe as Liebeck’s. By comparison, 1-in-4-million Americans will be killed by lightning in a given year, and 1-in-20-million Americans (and a much higher ratio of American toddlers) drown in 5-gallon buckets in an average year.

  32. FM reply at 32: “This is Fred’s flawed assumption, that products should have no “problems.” The world should be totally safe, with litigation for all accidents.

    I care about none of this. I am, however, interested in why and how persons or organizations decide to either settle or try their cases. I also want the persons or organizations making these decisions to take personal responsibility of any bad ones they might make.

    In my opinion it is insanity to try any case: 99% of all cases, criminal or civil, should be settled. There is a settlement sweet spot in nearly every case, which is usually easy to find. But too many cases are tried, and afterwards someone is usually holding their head in their hands muttering “My God, what was I thinking?”

    There is nothing special about the McDonalds coffee case, other than the incredible blunder McDonalds made in not settling before trial. They knew that the jury would know that the plaintiff wasn’t driving; they knew that the jury would know that the the car wasn’t moving at the time of the spill; they knew that the jury would know the severity of her injuries; and they knew that the jury would know that they had made private settlements in the past for similar injuries in similar circumstances. None of these facts could be disputed. So how does McDonalds defend?

    It could argue that the coffee really wasn’t that hot or that it was served at a temperature consistent with industry standards, which is belied by the past private settlements and the severity of the injuries. Or it could argue that “People like hot coffee, 160-180 degrees.” This one could work, maybe.

    Or it could call some doctors to testify that her injuries weren’t really that bad. Have to be careful here, because you don’t want the jury to think that you’re arguing that a 79 year old grandmother with scalded private parts is malingering, unless you can really prove it.

    McDonalds could have used some of the arguments from your link to the Overlawyered blog: “The case is ludicrous on its face, as a matter of law and as a matter of common sense.” I like that one: a lawyer tells the jury that if you don’t agree with him, then you don’t have any commonsense. Just how easy is it for a juror to think “that asshole just called me stupid.”

    Additionally who was going to be the face of McDonalds in the courtroom to contrast with the 79 year old grandmother with scalded private parts: the kid in the drive-thru window or some suit from home office? This case wasn’t an outlier. McDonalds was in deep trouble. Whoever wanted to try this case was out of their mind.

    McDonalds needed to settle. Otherwise the 79 year old grandmother with the scalded private parts was going to bend McDonalds over the witness box and with a red hot poker burn them a new one, all to the standing ovation of the jury. And then the whining began.

    You do wonderful work here pointing out how the MSM and certain “thought leaders” and “influencers” try to turn us into sheep. This is the part of the repurposing of your blog that I appreciate the most.

    However, the Overlawyered blog to which you linked is a herd the sheep blog. This case has nothing to do with the Left or the Right, or the liberals or the conservatives, or the democrats or the republicans. It has nothing to do with tort reform. Litigants make dumb decisions all the time. That’s all that happened here.
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    FM reply: A nice examply of attorney-think. I said that he omitted material information, which contradicted his narrative. He writes a long response which ignores those objections.

    “I care about none of this.”

    I dont’ know what you mean by “this”. I have no interest in the case details, which I accurately described as complex. I find more interesting the successful efforts of both sides to see that those sharing their ideology don’t know the full story. That’s made easy by substitution of the mainstream news media (however flawed) by single-view Internet sources (like overlawyered). That gives a false picture of simplicity to a complex world. It’s a bad trend, making us both ignorant and more easily led.

  33. FM reply at No. 33: “I dont’ know what you mean by ‘this’.” and “I find more interesting the successful efforts of both sides to see that those sharing their ideology don’t know the full story.”

    What I mean by “this” is ideology. I’m not an apologist for the civil justice system. Just think of my comment as being made by a plumber who came upon shoddy work.
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    FM reply: That kind of expert commentary is always welcome here.

  34. So if McDonalds got a do-over and you were their trial counsel, what would you do different? You don’t have to be a lawyer to answer this question. Just compose your opening statement in your head. You don’t have to post it. But I guarantee you won’t be happy with anything you come up with.

    All facetiousness aside, I agree that too many lawyers and litigants try to game the system, which imposes enormous costs on the rest of society. If you were to post your ten principals for the reform of the civil justice system, I would probably agree with all. I could probably add a few to which you would promptly say amen.

    We’re just talking past each other because we’re interested in two different parts of the issue.
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    FM reply: We’re not talking past each other. Each of us is clearly talking about different aspects of this topic. Not unusual when discussing something of this size and complexity. But I see no confusion in the discussion.

  35. I’m startled at reading the comments. Few of them are about the actual topic.

    I’m just amazed that somehow America managed to function in 1980 (when I entered the workforce) without those extra 6 million government employees. Of course, those must have been dark times with unimaginable suffering everywhere. Thank God and my Congressman that the government payroll is larger now.(Note for FM, this is sarcasm)

    Too many riding the wagon, not enough pulling.

  36. FM wrote in #32: {the article at Overlawyer says} “By comparison, 1-in-4-million Americans will be killed by lightning in a given year.”

    Isn’t it high time that we put a warning sticker on lightning?

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