Should there be a remedy for all wrongs?
Bookworm on Jan 16 2007 at 9:49 am | Filed under: Law
One of the catch phrases you learn in law school is that “for every wrong there is a remedy.” This means that anyone with a legitimate grievance can show up in court and get some redress, even if it’s only the symbolic peppercorn. The problem is that, something that redresses the wronged person’s finances, may nevertheless be so small in value that it doesn’t serve as a disincentive to the actor.
Where one really sees the disincentive problem play out is in cases against deep-pocket corporations accused of placing dangerous products on the market or committing bad acts against society. Often, the damages associated with each bad product or bad act are limited. A toaster that gives people shocks can be replaced for $35.00. This low cost remedy may mean that it’s cheaper for the manufacturer to keep making cheap, dangerous toasters, because it will only occasionally be called to account to fix them — and then the dollar cost of a fix is low. The law has two remedies for this situation: (1) class actions, where lawyers find one real toaster customer and hypothesize all the others, which creates aggregate damages far beyond the actual $35.00 breakdown; and, if a class action isn’t feasible, (2) really, really big punitive or special damages. If making a bad toaster will cost you $35.00 in actual damages, but $500,000 in punitive damages, business sense dictates a rejiggering of your toaster assembly line.
In theory, the above approach to renegade manufacturers and corporations isn’t such a bad thing. It allows the legal system to redress marketplace asymmetries so that a large business cannot place dangerous products in the market or engage in wrongful practices simply because it’s economically cost efficient to do so. With legal amplification from class actions, or from special or punitive damages, that economic incentive to behave badly goes away.
As with so many things that are good in theory, though, real life facts have a way of interfering. Class actions have often devolved into lawyer “get rich quick schemes,” where lawyers cobble together bogus cases and then quickly settle them, with pennies going to the consumers and millions going to the lawyers. Whole industries can be destroyed when lawyers get the bit in their teeth, and judges do not or cannot restrain them.
All of this ruminating leads me to one case in today’s headlines — the story of the man who successfully won a $400,000 award from a jury based on his claim that American Airlines shouldn’t have taken him off a plane:
A jury in Massachusetts ruled on Friday that American Airlines should pay a South Florida man $400,000 in a discrimination case.
John Cerqueira and his attorneys accused American Airlines of racial profiling after he was removed from a plane in Boston in December 2003.Cerqueira said he had visited family in the Boston area and was trying to fly back to Fort Lauderdale-Hollywood International Airport when American Airlines officials ordered him and two other men off the plane.
“I have a feeling these kinds of incidents of racial profiling happen to people more often than we’re aware of,” said Cerqueira.
Cerqueira said three Massachusetts state police officers escorted him and two Israeli men off of the plane. They were all questioned and later released.”We went to the American Airlines ticket counter and they refunded our fares for all three of us and told me I was being denied service,” Cerqueira said. “They didn’t tell me for how long and I had to figure out a way to get home.”In his suit against the airline, Cerqueira, who is an American citizen of Portuguese descent, claimed he was denied service because the airline mistakenly believed he was of Arab, Middle Eastern or South Asian decent.The complaint included an e-mail message, which Cerqueira said is from an airline official, stating, “Our investigation has revealed that our personnel perceived certain aspects of your behavior, which could have made other customers uncomfortable on board the aircraft.”
Consider the facts: Mr. Cerqueira was taken off a plane and given a refund. He then had to find another flight home. It was maddening and inconvenient, but was it really a $400,000 injury to Mr. Cerqueira? No, it wasn’t. What it was was a situation in which the jury was sending a message to American Airlines that, while one man’s injuries weren’t too much of a problem (a few hundred dollars), what American Airlines did was really, really bad. That juror conclusion, though, leads me to ask whether what American Airlines did was really so bad. I don’t think so.
We’re living in a day and age when bad guys get onto planes with box cutters, and shoe bombs, and liquid bombs, and visions of murder and mayhem in their head. We’re living in a day and age when these bad guys kill, not one or two people, but hundreds and thousands. And we’re living in a day and age when airlines, which have lost their own people in these attacks, are the first line of defense for all of us against these crazies. Airlines have to do the best they can and they are not always going to get it right. With a verdict like Cerqueira’s, however, Airlines are going to be caught between Scylla and Charybdis. They’re damned economically if they inadvertently pull the wrong person off the plane, because verdicts are hugely disproportionate to the cost and inconvenience of any given individual tagged this way, and they’re damned to all eternity if their fear of litigation causes them to relax their vigilance.
Perhaps there can be some type of oversight board to make sure airlines don’t become overly aggressive or paranoid about policing their own flights. But the current system, where every jury with a blank check can cause airlines to second guess their own necessary vigilance, is definitely a wrong path in assuring the safest flights possible.
What’s your take on this situation, and what would you do to ensure that airlines maintain their vigilance without becoming vigilante organizations?
del.icio.us
digg it
Email This Post To A Friend
11 Responses to “Should there be a remedy for all wrongs?”
Leave a Reply
You must be logged in to post a comment.
An oversight board on airlines. Hmm… How about an oversight board on lawyers?
an oversight board? puleesse I’ll take my chances with due process, but then, I’m not one of those authoritarian conservatives who think terrorism trumps the western tradition of jurisprudence.
Hi Greg,
I’m with you as a general statement. But that is not to say the “western tradition of jurisprudence” cannot be improved. Something really does need to be done about the type of class actions that make companies poor, lawyers rich and doesn’t do much of anything for anybody else. Some class actions are worthwhile & should be preserved. 95% of them are either attorney get-rich-quick schemes or ideological efforts to drive people out of business (or both). The trick is figuring out how to keep the baby and throw out the bathwater and we haven’t figured that one out yet.
a comment that I read as different-in-kind from Bookworm’s and raises the issue of punitive damage reform (rather than Bookworm’s authoritarian notion of punitive-damage suspension, in the face of inchoate terrorist evil).
Hi, Greg,
I don’t read Bookworm’s comment that way, especially since she ends with a question — seeking a solution, not imposing an “authoritarian notion.” I’d be most interested in whether you have an answer to her question. She doesn’t (aside from the rather tentative and not fully formed oversight board idea) and I don’t, but we are certainly open to your suggestions.
I’m not sure why it’s the airline’s problem. Don’t we have thousands of federal stumblebums with “TSA” written across their backs to stop this kind of stuff even before anyone gets near a plane? If they let the guy through to the ramp, he is presumptively okay.
Which, if he blows the plane up mid-flight, won’t save the airline from getting sued sideways of course, but still: that was the idea, was it not?
Airlines aren’t, conceptually, a whole lot different than city buses. You get on, go where you’re going; get off. What they do is provide the transport between Point A and Point B. Transportation is the business they’re in, why are they pretending to be in the security business at all?
Airlines police - to whatever extent - their own flights because there are problems unique to flying, many of which are only discovered after the thing’s airborne: claustrophobia, enhanced effects of alcohol, a variety of phobias related to close exposure to other people, height, and not being in control, etc.) Those, obviously, airline personnel have to be alert to.
If there is a passenger who is upsetting to other people, I would be of the school of thought that says the airline has the right to put him off, just as steamship lines have the right to put off the obstreperous, without fear of legal repercussions. They are conceptually like city buses, subway trains, and railroads in what they do, yes: but they are not like them in how they do it. The buses, subways, and trains are owned by all: they are not in fact private property. An airliner is. American Airlines owns that plane, it is theirs, and it was neither bought with public money nor is it operated by public employees. It is private property.
I would think the protections extended to private property would apply to it just as they apply to any other private property. If you come into my home and are annoying me, I am slinging you out. If you enter a restaurant or a theater and are annoying everyone else, they can put you out.
And they should be able to do so. It is, I reiterate, THEIR plane. When you buy a ticket you have an expectation, but I do not believe you have purchased a right.
(1) The title of Bookworm’s post is “Should there be a remedy for all wrongs?”
(2) The problem Bookworm IDs is a large punitive damage resulting from a vaguely terrorist-related suit, a damage that Bookworm judges to be “a wrong path”.
(3) The solution Bookworm offers is an oversight board, which would obviate, say, an airline’s responsibility for injuries it might inflict on a passenger (or at least it would shield the airline from a suit and a possible penalty for bad citizenship).
(4) Thus, Bookworm’s oversight board provides us with an answer to the question she raises in her post’s title – and that answer is, ‘No.’
Bookworm’s suggestion is not to reform punitive damages but to suspend them. That position is unambiguously outlined in her post. She distrusts (scorns?) judicial proceedings so much that she wants to abandon them. And THAT is an authoritarian response to terrorism.
No oversight board. Who needs MORE bureaucracy, more shifting of responsibility and common sense?
I believe American Airlines should be commended for their stand and their unwavering support of their flight crew, despite the court decision. Pilots/crew are the last line of defense on an airplane, are trained to be professional, and should allowed to use their judgment and common sense, perhaps erring on the side of being more, rather than less, cautious. The pilot/crew in this case acted in the best interests of the passengers in making this most difficult decision in a limited time frame and should be supported without fear of a lawsuit. There is precidence for this, the good samaritan law. Will there be mistakes, will some passengers have to take another flight due to the flight crew being overly cautious? Perhaps, but compare the ‘inconvenience’ of missing a flight allowing time for a more thorough evaluation of a passenger, with the ‘inconvenience’ of a plane going down in deliberate flames.
The 6 Immans on the United Flight in Minneapolis last fall should be in serious trouble for loudly calling ‘Allah Akbar,’ the suicide bombers’detonation yell, on the plane. How have the Immans missed the fact that yelling this, like yelling ‘fire’ is a bad idea? I suspect they haven’t missed a thing. I suspect these incidents are likely a systematic means to intimidate and test what is possible to get away with in an airport. Planes are still a most effective weapon.
The damages weren’t because he was taken off the plane (although the reasons for taking him off were dubious) but because AA refused to fly him after the Police had determined that he wasn’t a terrorist and wasn’t a threat.
Imagine if that had been you, if you had been accused of being a terrorist, cleared and then treated like one anyway.
The staff of AA let fear and prejudice drive their actions, not rational thinking.
Profiling based on behavior is good, profiling based on race is bad because it produces so many false positives, may miss the true positives, leads to resentment in the target group and can be counter-productive.
Recommend reading:
(Bruce Schneier is a security expert)
My links didn’t appear, I’ll try again:
http://www.newyorker.com/fact/content/articles/060206fa_fact
http://www.schneier.com/blog/archives/2005/07/profiling.html
well, I suppose the airline was playing it safe but I do agree that profiling based on race is not the right thing to do.
I was on a flight with my mate he’s got a little arabic looks (it from his grandfather’s side) Wow, going through the airline stuff was filled with suspious looks. Eventually after a little delay we were able to go through.