Happy Monday FRians!!! Hope everyone had a nice weekend. As always, today’s post comes to us from Stephen Hall. Thanks, Stephen.
Every so often, you run across a seemingly innocuous news item which has profound long term implications for our society at large. Such was this item in the Twitter feed of a liberal reporter I follow regarding a legal case occurring in Massachusetts.
The story itself appears of an appeal from relatively minor legal matter in a state court of a discovery matter, the mere production of documents for a civil suit. How could that be of a catastrophic or monumental importance of a national or even international scale?
It is not any single issue which is of concern, the convergence of a number of seemingly unrelated concepts into the precedent for the perfect legal storm, and the potential for future actions which could tear apart the very fabric of civilized society. Over-dramatic?
Consider that discovery itself can become and is used as a punishment in and of itself creating an enormous time and financial burden on the person or company sued just to comply with an overly extensive or expansive inquiry of thousands upon thousand of documents in a modern Fortune 500 company.
Consider that many a lawyer labeled an “ambulance chaser” have made a considerable amount of money employing junk science and forum shopping to harass and extort large companies before a sympathetic jury in some jurisdiction or other unfriendly to business and capitalism in general.
Consider that the corporate tax laws favor increasingly large consolidated companies of an international nature rather than a collection of small local companies, and that such consolidation both gives them greater economic and political clout, but also makes them vulnerable to the hostilities torch and pitchfork bearing villagers.
Take a close look at the issues of the tweet.
Based upon a pseudo-scientific, if not outright fraudulent, hypothesis of anthropomorphic climate change, that is the idea that the industrial activities of humans are significant enough to override the natural climate processes and create catastrophic destruction to society itself, lawyers have theorized a novel cause of action.
Because the corporations in question provide a very basic input extremely widespread in modern society, namely oil, which product is used in every jurisdiction in the world, the sale of such product brings the corporations within the jurisdiction of the local courts purely by the sale of their commodity through an established commercial extraction, refinement, distribution, and retailing of the ubiquitous commodity.
The lawyers have sought a jurisdiction friendly to the “science” and hostile towards the defendant corporations in Massachusetts, with a jury and assuredly a judge inclined to their ideas and predisposed to favor their cause.
The “plaintiff” in the case, no matter who the actual litigants are, are going to be perceived as mother nature, Gaia, the environment, an abstract concept of social good. The defendants are going to be perceived as evil, greedy, corporations exploiting the environment, harming the poor, and a dozen other abstract bad things.
While the plaintiffs seek something as seemingly simple as the disclosure of documents, they are seeking over forty years worth of documents from an international company, at the company’s expense. Those documents forming the basis for what is essentially a fishing expedition to try to find any evidence which would justify the plaintiffs conspiracy theory that the company knew that their product might contribute to climate change, and thus was inherently dangerous.
This is not novel. The same tactics have been employed against big tobacco companies, asbestos producers, automobile manufacturers, and chemical producers. The use of junk science has also been used before in many cases in order to show some vague correlation as if it were proof of causation to scientifically illiterate juries.
What makes this particular instance so disturbing in my perception is not the novelty of any of the individual elements, but the increasing acceptance of the use of such litigatory witch hunts to enact vague notions of social justice against economic and political enemies.
The idea of a nation of laws only applies to a moral nation which treats litigants fairly and impartially, which employs some objective sense of scientific scrutiny, a populace which aspires to be the reasonable man rather than crusaders for social causes, and a natural sense of the judicial officers of the limitations of state power.
All of these, our society has seemed to have lost.
More to the point, it does not seem that the proponents of this course of social pursuit even see the long ranging ramifications of nature of the beast which they have created.
Imagine another junk science. Instead of “global warming” or “climate change”, imagine a flat earth theory, or chem trail theory, or white people are all racist theory, or science is white supremacy theory, or the religious invasion of New York City by chicken sandwiches theory.
The merits of the theory become meaningless if you can search out a population which believes the theory. If you indoctrinate at least one jurisdiction’s population to accept one’s social justice theory as science, then you create a favorable forum for lunatic justice.
What is to stop opportunistic lawyers and judges from using such a jury pool to extort money from large multinational companies?
Is Exxon to stop selling oil in Massachusetts, just to avoid a repeat of the suit not against selling defective oil, but the potential that they may be sued for knowingly contributing to global warming? How does a multi-national company defend themselves in every jurisdiction where they do business?
The proponents of this system will say that a company is only liable if they knew that their product had a negative effect and failed to inform the public of the inherent dangers of their product. They went after the tobacco companies because they had internal studies showing a correlation with cigarette smoking and cancer, but told the public that smoking was safe, sometimes even told the public that smoking was healthy.
So now, they are claiming the Exxon knew that burning fossil fuels contributes to global warming, after all it is settled science. Which leads to the possibility that if any internal study by a company shows a statistical correlation that the company will be liable even if the idea of causation is merely speculative.
More troubling is the political impetus behind the targeting of certain corporations and not others. It does not appear that corporations which are perceived by those select indoctrinated jury pools as supporting leftist causes are the ones targeted for such treatment. The courts have increasingly become a weapon of the culture wars, and they appear to be a rather one sided weapon.
To make the weapon effective requires the combination of the education industry, and the media industries to prime the legal system to be used to attack industries and companies which oppose the philosophy of the left.
However, the creation of weaponized courts is a double edged sword. Imagine a court case in a conservative district against a major media corporation from damage created from some type of “fake news”.
Just as the leftist media and political apparatus repeatedly defending Democrats for egregious sexual scandals has led to a cynical indifference to any allegations against President Trump’s sexual behavior, if the use of the courts to attack corporations becomes perceived as a political attack, rather than just misguided avarice, then that weapon will be cynically turned against left leaning corporations.
We could quickly see a situation where the people’s respect for the entire legal system could break down along partisan lines, jurisdiction by jurisdiction. When the law becomes a weapon, respect for the law collapses. It is my estimation that this is a more dangerous precedent than any of the people involved in these lawsuits realize.
