Yesterday, I talked about the inescapable vise of progressive politics — but today let’s talk about the efforts to put a vise around quasi-progressive rock.
Yes, today is the pivotal day in legal history when witch-burning socialists in Massachusetts decide whether to punish the rock band the Fixx for being too cool.
All right, I’m slightly misrepresenting the details of the situation. Actually, they’re just having a meeting of the events licensing board in Newton, MA about whether to revise their noise rules to henceforth forbid things like the recent outdoor Fixx concert in celebration of the opening of the Hotel Indigo. The Fixx themselves have long since safely escaped the town (and after all, they did once do a cover of “These Boots Were Made for Walking,” oddly enough).
If Indigo ends up being fined or something (presumably not in a post facto fashion), and they organize a benefit concert to pay their legal bills, perhaps they should consider using that band I saw perform with a theremin a few weeks ago, Rebel Hotel. Get it, Rebel Hotel? You see how perfect that would be, since, like, the Indigo’s a Hotel, and they’re, like, rebels?
On a more broadly useful note, this seems as good a juncture as any to note that I’m strongly in favor of the U.S. adopting the principle (very common in the rest of the world, including Europe) of “loser pays” in legal battles — that is, you lose the case, you must make the other side truly whole by paying the victor’s court costs, not just the damages at issue. This would eliminate the all-too-powerful incentive to shut people down simply by targeting them with lawsuits that they know will be time-consuming and expensive even if they win. It also diminishes the incentive to “give it a shot” and bring likely-losing bogus cases. More important, restitution to the vindicated party is just basic justice.
The pros and cons of loser pays will be the topic of discussion this week on NewTalk.org, a civility-encouraging political-discourse project of libertarian lawyer Philip K. Howard, whose minions include my non-libertarian but nonetheless swell friend Jenny Foreit and whose book The Death of Common Sense nonetheless does wonders to angry up the blood against nonsensical laws.
Strangely, I encounter a lot of people (including a smart libertarian) whose immediate intuitive reaction to loser pays is that it will prevent the poor from bringing lawsuits.
Now, if the end result of loser pays is that you can in effect bring a meritorious case for free, I fail to see how this is (on balance) bad for the poor. Indeed, even those of us who are not poor might like the ability to bring lawsuits over various petty matters not currently worth hiring a lawyer for (say, having one’s computer deliberately misdiagnosed by a repair shop so they can charge you more, to take an example from my own experience, back when the villainous Computer Era store in the East 20s existed — and just days, alas, before its thuggish staff were exposed as con artists on the cover of New York magazine).
There’s little I can do — as I am reminded day after day on countless philosophical topics — to control how people will intuit or even make them see that they might have opted to intuit differently than they have. But I suspect this intuition that loser pays is bad for the poor is largely driven by a subconscious assumption (occurring most often in left-leaning people, interestingly) that the poor have a special interest in bringing bogus lawsuits.
After all, in a purely algebraic sense, the filter mechanism introduced by loser pays is not mainly to punish suits by the rich or the poor but simply to punish suits that lose. Why should we assume it is in the interest of the poor to see losing suits given a leg up? That’s a bit like the old condescending liberal assumption that cracking down on crime is bad news for the poor. Baloney — it’s first and foremost bad news for criminals.
Likewise, loser pays is mainly bad news for…losers, which is to say people bringing bad suits or (lest we forget the whole purpose of lawsuits) committing wrongs for which they should pay damages. Or to put it in terms the left can understand: Don’t you think there are companies out there committing wrongs that lovable little poor people might like to sue over but are currently afraid to because even if they have slam-dunk cases they’ll still have big legal bills to pay in the end? Or to put it as starkly as I can: Are you so worried about discouraging poor people with bad cases that you’re unwilling to encourage poor people with good cases?