Author Archives: Painfully. Slow. Progress.

About Painfully. Slow. Progress.

I am a secular humanist, an independent progressive, and a law student currently earning both my J.D. and LL.M. in democratic governance and the rule of law. More importantly, I consider myself to be a student of anything and everything. I started this blog in hopes of generating an in-depth and practical discussion of American politics, culture, religion, and law. Hopefully it will serve to get people really thinking, including me.


And here’s where you act surprised.

I was stumbling around the internet today and I came across this article from the New York Daily News, which asserts that an atheist group’s pending lawsuit in opposition to the prominent display of a cross at the site of the 9/11 museum and future memorial (which operates on donations and has actively sought federal funding) is entirely baseless. The “cross” is a piece of the steel superstructure of the towers that was left over after their collapse, and was specifically chosen for inclusion in the museum because of its remarkable similarity to the Christian symbol. It’s like Jesus on toast, but much less of a coincidence (the building would have had thousands of such steel “crosses” in its framework).

I take no issue with the notion that the suit is unlikely to prevail, since at this point the property on which the museum sits appears to be privately owned. I also take no issue with the shamelessly pejorative light in which nonbelievers are cast throughout the article- frankly, I’ve gotten used to such unwarranted judgement. What I do take issue with is the suggestion that atheists are completely unjustified in resisting such blatant religious affiliation with what should arguably be considered a national memorial.

What follows are some comments on the article, just a sampling from the first 3 pages of comments (at the time I read the article). I think they make it clear what kind of readership the New York Daily News garners… Comments are quoted in their entirety, without alteration (even where my editorial tendencies tugged hard at my heartstrings). I encourage you to check out the most recent comments by following this link to the article to see how things have “evolved.”
“I’ll tell you what…if an equal number of atheists can get past that group of construction workers and firefighters, then they can take it down. However, since most atheists look like pencil-necked geeks, I sincerely doubt they’d be able to do it.”

“People will do anything for attention.”

“Cross = NO!! Mosque = OK!!”

“I bet on 9/11 when all hell was breaking loose, you couldn’t find an athiest anywhere. Let it go people. If it offends you that much let me be the first to say just don’t go and see it.”

“like it or not, NY and America is a Christian Nation. In God We Trust.”

“Jesus is everywhere. Even at 9/11.”

“My GOD what’s wrong with people? If you don’t believe in God then you should see this as two scraps of metal and nothing more. Go away you little trolls! this is why everyone hates Atheists because they spend more time trying to take God away form others than anything else. God Stll Loves You Dirt bag :@}”

“The Constitution guarantees freedom OF religion, not freedom FROM religion. Thus, it is Constitutionally protected “speech” to display the artifact that is in the shape some view as the religious symbol called a cross.”
*I must point out that the above evaluation of the 1st Amendment is entirely WRONG*

“Do not let the devil steal our joy , only the fool said in his or her heart there is no God . The Atheist will come to their knee soon and ask for forgiveness , give them time they willsee that therte s only one God and it is not money/.,”

“Ummmm, if it were REALLY a cross that had been hanging in a church then the group might have a point albeit an appalling and distasteful one in my opinion. BUT this is not a church cross…it is basically a piece of the rubble from the WTC and yes Christians will see it as a cross but that’s how they see it. Like the letter “T” on a page. Maybe the atheists out there want us to remove the letter “T” from our alphabet?? What a bunch of a***holes.”

“I also believe it is kinda funny and contradicting that “atheists” believe an actual Crucifix was formed by the devastation …..If they didn’t believe it , it wouldn’t bother them !”

“What next, removing “In G..o.d We Trust” from all of our currency? Hey atheists, do what I do when I see something that offends me… look away or change the freakin channel. No impingement of freedoms with that approach.”

“whats the point of separation of church and state?”

“I hate atheists and have absolutely no respect for them. They are the scourge of the Earth.”

“I would like to offer an invitation to those who filed or agree with this lawsuit. I would llike to invte you to go FK YOURSELF!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!”

“all of these misguided fools will be true believers when they are on their deathbed!”

“It’s amazing to realize that a certain percentage of fundamentalist atheists apparently believe that the “separation of church & state” means they never have to gaze upon a religious symbol while out in public. It’s also amazing that 99% of their lawsuits are against Christian symbols. It might suggest that this small group of atheists are more interested in destroying others’ religious beliefs than in offering something positive of their own beliefs. Wait until Xmas & see how much $ they spend to attack the holiday, while not offering a cent to establish an atheist soup kitchen.”
Most of these speak for themselves, but in response to that last one, I would direct you to The Bill and Melinda Gates Foundation, a massively influential charity. Mr. Gates and his wife are both atheists, and as one of the richest Americans Gates notoriously donates over half of his massive income to charity. The assumption that because atheists are not organized implies that they do not participate in charity is fundamentally a non-sequitur. Just because we don’t get together and sponsor a charity is irrelevant. Many atheists contribute to many non-denominational charities (and I have as well).

But to return to the issue, would New York citizens (perhaps I should really just say the New York Daily News) be so defensive of a different religious symbol being displayed at the museum? Say we found a piece of rubble that some might think looks like the Buddha, or say we were to frame a crescent moon and star that a Muslim had hanging on the wall of his office in one of the towers?  In regard to the former, it would likely be ignored as insignificant, in regard to the latter, we would likely hear yet more right-wing Christian rhetoric about how such a symbol cannot be allowed, and how it must be displayed at a minimum distance from the site of the attacks, and how America is a Christian nation, and how we need more legislation banning Sharia law.

The point is this- a cross at the site of the memorial, as the sole religious symbol, suggests that we have come to a consensus as a nation that it was Christian America, not America itself, that was attacked on 9/11. Nothing says otherwise and there is a gigantic cross standing in the museum. It’s not just a piece of rubble, it has been propped up to specifically resemble a cross. This is despite the fact that not all Americans, and not all of the people killed on 9/11, are Christian.It’s despite the fact that over 20% of Americans don’t identify with Christianity in any way.

Though the article in the New York Daily News might attempt to lambast nonbelievers in general, labeling them as causeless, idiotic assholes with nothing better to do than pick on Christians, the fact remains that it is atheists, not Christians, who are defending the objective position. When we permit only one religious symbol to be displayed at the site, the one religion that it represents is inherently imposed upon all of those who are supposed to be memorialized. Call me wrong, but I think that’s pretty fucked up.

Those arguing on behalf of the cross aren’t arguing on behalf of Americans, they’re arguing on behalf of Christians. The atheists arguing against the cross are in fact arguing on behalf of not just nonbelievers, but people of every faith and creed that was represented in the twin towers, if not the entire nation. We should not forget that in maintaining our constitutionally guaranteed right to not have religion imposed on us, we ensure that future generations of Christians need not fear such a tyranny of the majority as they have so casually, passively affected on others for so long.

Ironically, it is just such a tyranny that caused our founding fathers to flee the monarchy of England, and it is also what led them to insist on the ratification of the First Amendment to our Constitution. This lawsuit isn’t about getting back at anyone, it’s about protecting the rights of everyone. The reason it is being brought is that it presents an interesting question of a conflict between national interest and private property, one that frankly needs to be addressed, if not to prevail then to set a precedent and draw the line. I suspect that private property rights will win out. That’s fine- we have to adhere to the careful doctrines of property law that we have established over the years. I think we all know, however, that just because it’s legal doesn’t make it right, and it doesn’t make it respectful to the dead.

Also, let’s be real here- this “cross” is an I-beam intersection, not a meaningful religious symbol. To treat it otherwise (like by picking it from the ruins and standing it on end in a museum) is to make an exception, and again, lets not kid ourselves that such an exception would be made for Muslim, Buddhist, Hindu, Pagan, or atheistic symbols. Our memorial shouldn’t be religiously affiliated post ex facto, just like the Mormon church shouldn’t be posthumously baptizing Albert Einstein. It’s not just ridiculous, it’s insulting.

I’m not arguing that all Christians are trying to push their religion on others. I’m not arguing that crosses should not be allowed to be publicly displayed on private property. All I’m arguing is that displaying a massive cross at the site of the 9/11 attacks is tasteless and should be disapproved not just by atheists, but by Americans of all creeds and callings. In defending a freedom from religion in places that clearly transcend faith, we defend the interests of each and every American, regardless of faith.

One day, I hope, we will come to realize and embrace the notion that we should be both mindful and respectful of all forms of belief, not just by allowing them where they are warranted, but by opposing them where they are not. Until then, we will continue to fight, despite little chance of success, for progress.

Painfully. Slow. Progress.

UPDATE 8/9/2011: I found an even better compilation of ridiculous comments on this issue here.





Hacktivist group Anonymous has supposedly breached NATO security and obtained almost 1 gigabyte of data, much of which even they have deemed ineligible for release. In response to their hacking efforts, Steven Chabinsky, deputy assistant FBI director, made some disapproving comments about Anonymous during an NPR interview.

Anonymous has responded. As always, they are frank and unapologetic. Infowar 1 is well underway, and the most interesting aspect is that they appear to be making the higher-ups really sweat. Their response follows:

Hello thar FBI and international law authorities,

We recently stumbled across the following article with amazement and a certain amount of amusement:

The statements made by deputy assistant FBI director Steve Chabinsky in this article clearly seem to be directed at Anonymous and Lulz Security, and we are happy to provide you with a response.

You state:

“We want to send a message that chaos on the Internet is unacceptable, [even if] hackers can be believed to have  social causes, it’s entirely unacceptable to break into websites and commit unlawful acts.”

Now let us be clear here, Mr. Chabinsky, while we understand that you and your colleagues may find breaking into  websites unacceptable, let us tell you what WE find unacceptable:

* Governments lying to their citizens and inducing fear and terror to keep them in control by dismantling their freedom piece by piece.

* Corporations aiding and conspiring with said governments while taking advantage at the same time by collecting billions of funds for federal contracts we all know they can’t fulfil.

* Lobby conglomerates who only follow their agenda to push the profits higher, while at the same time being deeply involved in governments around the world with the only goal to infiltrate and corrupt them enough so the status quo will never change.

These governments and corporations are our enemy. And we will continue to fight them, with all methods we have at our disposal, and that certainly includes breaking into their websites and exposing their lies.

We are not scared any more. Your threats to arrest us are meaningless to us as you cannot arrest an idea. Any attempt to do so will make your citizens more angry until they will roar in one gigantic choir. It is our mission to help these people and there is nothing – absolutely nothing – you can possibly to do make us stop.

“The Internet has become so important to so many people that we have to ensure that the World Wide Web does not become the Wild Wild West.”

Let me ask you, good sir, when was the Internet not the Wild Wild West? Do you really believe you were in control of it at any point? You were not.

That does not mean that everyone behaves like an outlaw. You see, most people do not behave like bandits if they have no reason to. We become bandits on the Internet because you have forced our hand. The Anonymous bitchslap rings through your ears like hacktivism movements of the 90s.

We’re back – and we’re not going anywhere.

Expect us.

I for one support Anonymous, if not in a specific sense, in a general one. They operate in a democratic fashion, one that requires the support of many in order to be maintained. They allow for mass opposition to untouchables like the Westboro Church and Scientology. So far, they have yet to attack an entity that didn’t wholeheartedly earn and deserve it, in my opinion.

I have noticed the mainstream media almost exclusively condemns their efforts. If you’re on the fence, and you want to know a bit more about the movement (it’s mission and how it goes about selecting “targets”) before you decide, this video sums things up quite succinctly:

We are Anonymous.

We are Legion.

We do not forgive.

We do not forget.

Expect us.


I just came across this video of people being placed under arrest for dancing in the Jefferson Memorial.

It reminded me of the fact that not a single Las Vegas police officer has every been prosecuted for any wrongdoing in an official capacity. That’s just one major city. Who knows how else the police are exercising their powers in unreasonable and unjust ways. Who knows how many cell phones/cameras have been stomped on because they contain incriminating information.

The police in this country have a ridiculous level of impunity, and we should reform our system to increase accountability and restrict the immunities that they enjoy. Otherwise, this is the ridiculous result:


“The reason people find it so hard to be happy is that they always see the past better than it was, the present worse than it is, and the future less resolved than it will be”

I recently had an email conversation with my mother, who happens to be quite conservative, about whether or not there is any hope for our current generation. She is living in Qatar right now (my parents are expats), and she gets most of her information about our societal goings-on from sources like Fox News and WSJ.  I thought she made an interesting point, and that you, my faithful readers, might find my response interesting as well. So here it is.

Her email:

Where is the optimistic and high-minded view?

Hey guys,
I was browsing the online wsj and came across a paragraph that struck me.  So I’m sending it your way.  You know, Dad and I grew up in, looking back, what seems like a more innocent, wholesome time period.  And, I think that the reason I look back on our time in Norway with such fondness is that the lifestyle there at that time (I don’t know about nowadays, given all the grafitti we saw when we had the reunion there) reminded me of the best days of my own childhood spent out in nature, berry picking, finding tadpoles, etc.  I don’t know, maybe it’s just the rose-colored glasses of old age.  I mean, I also grew up being warned not to talk to strangers, blah blah blah.  But when I read the following exerpt, it kind of resonated with what’s bothering me lately:
“In the Old America there were a lot of bad parents. There always are, because being a parent is hard, and not everyone has the ability or even the desire. But in the old America you knew it wasn’t so bad, because the culture could bring the kids up. Inadequate parents could sort of say, ‘Go outside and play in the culture,” and the culture—relatively innocent, and boring—could be more or less trusted to bring the kids up. Popular songs, the messages in movies—all of it was pretty hopeful, and, to use a corny old word, wholesome. Grown-ups now know you can’t send the kids out to play in the culture, because the culture will leave them distorted and disturbed. And there isn’t less bad parenting now than there used to be. There may be more.”
So, I guess I’m asking you guys, do you see anything wholesome and hopeful in the current culture in which you live?  Please send me instances of the good stuff!  Where are the hopeful, optimistic, uncynical TV shows?  Where is the hopeful uplifting music?  Can you tell me, because I’d like to see it and listen to it, and in general, bathe in it! 🙂  The 24/7 downer news cycle is not the view of life I want!
My response:
Hi Mom,
“Every generation is the lost generation.”
~George A. Silver
I really think the ratio of good to bad parents is probably about the same, if not better, today. The reason I think it seems so hopeless these days is that our communication methods have evolved to the point where a bear can’t shit in the woods without the news covering it. Of course, that’s an exaggeration, but I heard a more realistic way of putting the problem from a journalist who was speaking on C-span the other day. He said that the reason most of the news we hear today is bad news is that if a plane lands safely and everybody goes home happy, the news won’t cover it. The same standard goes for crime, corruption, hatred and controversy- these are all sensational topics, and between the real news for which the 24-hour news industry was designed, that’s what keeps viewers watching/listening/reading. An overwhelming majority of negative information of course shifts peoples’ perceptions of the world to one that is mostly bad, as a passive, collateral effect.
We are all indeed, willing or not, part of the largest human experiment to ever be affected on mankind. We are also at our highest population thus far, and our population continues to increase in a nearly exponential manner. Thus, if there was one kid spraying graffiti 20 years ago, now there are a hundred, and in 20 years there will be a thousand. As human beings, we are an incredibly plastic, adaptive society. To run with the graffiti example- as the amount of negative culture increases, a counterculture will inevitably evolve to confront it. Like in Norway, for every time the word “fuck” was scrawled on a wall, a work of art was painted to confront or replace it. The city tends to paint over the bad graffiti and preserve the artistic stuff. Graffiti has in fact led to the creation of a whole new genre of street art, one that is actually receiving much recognition among the modern art community (if you’re interested, check out some of Banksy’s work, he’s famous at this point and his messages are ones of activism, reform, and peace). We cope with negative aspects of society like gang-style/vandalistic graffiti by owning them and redirecting their energies and their purposes.
I understand what the WSJ quote is saying about innocence, but I would counter with the notion that true innocence is a thing that should not, and ultimately cannot, be defended. A sheltered life is no life at all, and should that shelter suddenly be lost, well, reality can be one hell of a shock. In addition, a person sheltered from that which is bad in the world lacks a true frame of reference by which to be good. This is why guided exposure, such as that which you and dad gave to my brother and I, is the norm. It’s also why Mormons have a higher percentage of rapists in their population than the general population- by discouraging and suppressing sexual intimacy they disarm individuals of the means by which to engage in it properly (an informal discussion of how high instances of rape in Utah relates to Mormonism can be found here). One of my beefs with people who actually adhere to and espouse variations of biblical morality (a massive percentage of our population does) is that I think we should establish our sense of morality from the world around us right now, not the world around a book written in the bronze age, or by a known con artist such as Joseph Smith.
How do we develop a sense of right and wrong in practice? We experience some of the right, and some of the wrong, and what we are left with is a choice, a judgement of personal prerogative. This is how one establishes a truly moral worldview, in my opinion. I think we should all confront the world around us for what it is, rather than cling to some idealistic perception of the world as this inherently moral and fair thing. We, in reality, make the rules, and we also, as a society, set the standards of morality. By being bombarded with bad news all the time, we become more aware of the negative aspects of society, and to some extent we become desensitized to them. This is both good and bad. It’s better if we are aware of the desensitization, so that we can learn from it. I think people are becoming more aware of that factor as it happens though. The fact that you are able to perceive a wrongness in society at all is a testament to that- if we were truly desensitized we would not perceive anything to be wrong.
So, in short, I think we’re doing good. I have met many, many wonderful human beings since I have left home for school, and of course every now and then I have run into what I consider a bad, or immoral person. I have come to believe that the majority of human beings are inherently good, and thus I have retained hope for humanity. I think in the long run our society’s moral push and pull will serve to bring us to higher and higher tiers of evolution-  psychological and moral tiers, rather than a physical ones. It’s kind of cool- in the abstract, this generation is a truly transcendent one.
So stay positive 😉
For examples- Did you ever watch the Dalai Lama speak? That’s a good one. Aside from that, wow, that’s a broad request. I know, I’ll refer you to TED- never have I seen a TED talk that hasn’t inspired me. Click the links that follow to see video’s I’ve picked out, and by all means, peruse their other videos! There are thousands of TED talks on the site, and they are all great sources of inspiration. Link 10 goes to the general video page, and once you’re there you can select categories on the left.

LINK 1, LINK 2, LINK 3, LINK 4, LINK 5, LINK 6, LINK 7, LINK 8, LINK 9, LINK 10.


Reblogged from progressivetoo

Senator Al Franken, speaking to AFL-CIO on Monday, points out the glaringly contradictory schools of thought that define the Republican economic theory:

“So the idea that those at the very top, who now are richer than anybody has ever been; we now have people who are richer than any people have ever been in the history of the world; why they can’t pay a higher percentage of their income in taxes in crazy. Those of us in the Senate who are Democrats, we talk to people who are rich. I don’t know any of them I meet who don’t say ‘I’m willing to pay higher taxes’. I know the Republicans go to these same fundraisers and hear different things from their people, and I respect that.”

Franken goes on:

“But there is no evidence that that works. In 1993, when we had something called the Deficit Reduction Package, President Clinton said, ‘let’s raise the top two levels’ [a 2% tax increase for the top earning 1% of Americans]. Every Republican voted against it, every single one. It passed by one vote in the House and one vote in the Senate. Every Republican, well not every Republican, but every Republican who said anything said this will cause a recession.”

After taking a jab at Newt Gingrich, who said this would be the “Democrat recession”, Franken continues:

“It worked. We had the longest period of uninterrupted expansion of our economy in our history when we increased the marginal rate on the people at the top. So it worked. And not only that, but it turned a record deficit into a record surplus, which he took from one Bush, a record deficit, and turned it over to the next Bush, a record surplus.”

And then it gets interesting:

“Five days after George W. Bush became president, Alan Greenspan testified to the Senate Budget Committee, and said ‘we are in danger of paying off our national debt too fast. We have a projected $5 trillion surplus going into the next ten years and we very well may pay off the debt too fast, the federal government is in danger of having too much money.’ He said, what would happen as a result of that is, we will have to take our excess money and invest it into private equities and that could disrupt the market.”

Franken continues:

“Now I don’t get their economic theories. If you cut taxes it will automatically raise revenues. They always say that, you hear it all the time. Watch Fox sometimes, ‘every time we’ve cut taxes we’ve doubled revenues.’ That’s Sean Hannity, he says it everyday, just google it.”

Here comes the contradiction:

“Then they also tell us ‘you have to cut taxes so the government doesn’t have too much money to spend’. Reagan said it in 1981, ‘you can tell your kids all you want, not to fritter away their allowance, but the only way to do it is to cut their allowance’. He said this, you can look it up. So in other words, his thing was, you’ve got to cut taxes so you cut the revenue so their not going to spend the money. So understand, their theory is based on two mutually exclusive contradictory theories.”

So does cutting taxes double revenues or decrease them? Which is it? Franken explains:… Read More

via progressivetoo


That’s the conclusion being put forward in a recent opinion piece published by The Journal of the American Medical Association and co-authored by Lindsey Murtagh (J.D., Harvard School of Public Health) and David Ludwig (M.D./Ph.D., Children’s Hospital Boston). They argue that if a child is obese enough, the state should be able to assume custody in the interest of their health. That’s right- if your kid is deemed to be too overweight, they should be placed in a foster home. I think this is a bad solution to a bad problem.

Having worked in hospitals for several years, and having witnessed firsthand the debilitating effects of obesity and the disorders it causes later in life, I would be the first to admit that we need to do something to help these children. The solution isn’t, however, to take the children away from their families and place them with foster parents who will theoretically enforce a dietary solution. That’s treating the symptom, not the root cause. It would put a massive (in more ways than one) burden on an already overworked and overwhelmed foster care system, as well as the American taxpayer through increased case management needs. That’s not to mention the fact that older kids are harder to place, and  obese children obviously aren’t the most popular choice among foster parents.

I think we need to acknowledge that the primary reason people are becoming more and more obese these days is the increased penetration and affordability of fast food, and unhealthy foods in general. The problem is only compounded by the fact that times have been hard during the recession. The problem isn’t that parents have suddenly become less responsible- there have always been and will always be people who neglect their children in one way or another, and our system has specific processes for dealing with that. However, if a parent can only afford to feed their kids off the dollar menu, does it seem reasonable that they should be punished by having their child taken away? Doesn’t feeding the kid show they give a shit? Mandatory foster placement is a single broad stroke against a problem with many different causes, and would serve all too often to abduct children from loving, caring homes. I don’t think we should stand for such lazy, callous solutions here in America.

You want to know my solution? Tax the shit out of corporations like McDonald’s, and place taxes that are on par with (or better yet, higher than) the taxes we imp0se on alcohol and cigarettes on fast food and junk food. This will make those types of foods expensive as hell, and less people will buy them as a result. Profit will be hurt, and corporations will have significant incentive to invest in healthy foods. The more companies operating in the healthy food arena, the lower the prices will be due to competition. That’s basic economics. The end result is healthy food being cheaper, and unhealthy food being more expensive. A cheeseburger isn’t such an attractive choice when it costs as much as a porterhouse, and less people will get fat off of them as a result- problem solved. Such a solution would also generate revenue while simultaneously addressing our increasing ADULT obesity problem.

Such a solution would remove the future burden that obese individuals will inevitably become on our already strained Medicare and Medicaid systems. It would also cause insurance rates to drop over time, because insurance companies would have to cover fewer obesity-related ailments (there are a plethora). Perhaps most importantly, it would break the cycle of unhealthy eating and serve to garner political will in support of subsidies for healthy, sustainable foods, thus creating a potential for the emergence of new American food industries. Jobs, people?

We have developed a tendency to think, like Ms.Murtagh and Mr. Ludwig, in an exclusively reactive way- we’re trying to get fat kids to lose weight, as opposed to trying to keep kids from getting fat in the first place. We’re treating symptoms rather than causes, and it’s gotten to the point that it’s like putting a band-aid on a ten-pound tumor. We need to get serious about this issue, as both a country and an electorate, and try to implement long-term solutions rather than short-term ones. Only once we learn these lessons will we begin to see progress.

Painfully. Slow. Progress.


A Talk For World Peace With The Dalai Lama

I was lucky enough to be in attendance at the World Peace Talks at the Capitol building here in D.C. this last Saturday (we even got front row seats on the lawn!), where the Dalai Lama spoke at length with a gathering of people from all different walks of life.  The Dalai Lama is a truly wise man, and although we may differ in our spiritual perspectives, I found myself in wholehearted agreement with the philosophies he espoused to the massive crowd that had gathered.

If you have the time, I encourage you to watch the video of his talk on finding inner peace as a means of affecting peace in the world. Later on, he responds to submitted questions, and at the end he even took one that was shouted from a young man in the crowd about dealing with corrupt officials in our government. My favorite part is around 53 minutes in when his holiness helps Whoopi adjust her microphone headset- priceless! Without further ado, here’s the video. Share it as you will.

Now this is a man who knows how to make progress!

Painfully. Slow. Progress.


I watched the HBO documentary “Hot Coffee” last night and it got me all fired up about  tort reform. For those of you who are less legally inclined- a tort is a wrongful act that results in some kind of injury, so a tort lawsuit can generally be considered to be an “injury” lawsuit.

I have a few major points to make on this issue, but for starters, I would like to provide some basic background facts on the most widely recognized (and widely misunderstood) tort suit in American history: the spilled McDonald’s coffee case (a full explanation is available here).

Stella Liebeck, at the time, was a 79 year-old New Mexico resident. She went to a McDonald’s drive through one morning, riding in the passenger seat of her Ford Probe, which at the time was a type of car that did not have cup-holders. Her grandson was driving the car. After purchasing some breakfast items, along with an extremely hot cup of coffee, her grandson pulled the car into a space in the McDonald’s parking lot and handed the coffee to his grandmother.

Liebeck, like many, takes her coffee with sugar and cream, and thus after the car was parked she went to remove the lid to put them in. Holding the cup between her knees, she went to remove the lid, and accidentally tipped the cup towards herself, spilling the entire cup of coffee between her legs. This was the result:



What you are seeing are full-thickness burns and the skin grafts that were required to treat them (real funny, right Seinfeld?). They were caused by the coffee that McDonald’s served to Liebeck. McDonald’s policy at the time was to keep their coffee at 180-190 degrees Fahrenheit. The machine that the coffee came from was in compliance with that policy.

People spill things, and accidents will inevitably happen. I’m sure you’ve spilled things on yourself before. This is the exact reason that McDonald’s should not be keeping its coffee at such high temperatures- it will eventually make contact with someone’s crotch. People can’t drink the coffee when it’s that hot, so there is no reasonable justification for keeping it at that temperature. This, my friends, is why McDonald’s was held liable for damages.

Now on the subject of legal damages, I have several points to make. Liebeck asked McDonald’s to settle with her for 20 thousand dollars, which would have been sufficient to cover her medical costs. All she wanted was to have her medical bills paid, and McDonald’s to consider using better lids on their cups (which they now have). McDonald’s refused, offering only $800. In response, Liebeck sought an attorney, and later settlements of 90 thousand and 300 thousand were requested on her behalf. No settlement was reached.

At trial, a theory of comparative negligence was argued. What that means in layman’s terms is that the jury was asked to assign percentages of fault to both the plaintiff (Liebeck) and the defendant (McDonald’s). Whatever the total compensatory damages are determined to be (as decided by a jury based on the evidence/arguments presented by counsel) would be adjusted and awarded accordingly. Thus if the total damages were $10, and each party was 50% at fault, the defendant pays $5 and the plaintiff is left to cover the remaining $5. This is the court’s way of acknowledging that multiple parties can be at fault and that it is not always fair to expect a defendant to cover the resultant damages in their entirety.

In the Liebeck case, the jury found that Liebeck was 20% at fault, while McDonald’s was 80% at fault. One of the reasons that the jury felt that McDonald’s was at fault to such a large extent is that evidence showed that over 700 reports of coffee burns had been made to McDonald’s, and no efforts were made to prevent them. This means that McDonald’s was well aware that their coffee could seriously burn people, they just didn’t want to expend the time or resources to replace or modify their equipment. They didn’t care how many people were harmed, because several claims for coffee burns that had been pursued in the past had been dismissed on the theory that coffee constituted an “open and obvious danger” that the customer was solely responsible for avoiding.

A jury found 200 thousand dollars in damages in the Liebeck case, which was reduced by 20% (because Liebeck was found to be 20% at fault) to 160 thousand dollars. In addition, the jury awarded Liebeck 2.7 million dollars in punitive damages, a number arrived at by reasoning that a couple of days worth of McDonald’s’ coffee revenues would not be an overly burdensome penalty to impose. The judge reduced the punitive amount to 480 thousand dollars (3x the compensatory amount), bringing the total with the compensatory damages to 640,000 dollars. Afterwards, Liebeck chose to settle out of court for an undisclosed amount that was less than 600 thousand dollars. Her overall expenses are unknown, but several years of paying an attorney to fight a legal battle against McDonald’s can’t run cheap.

Now I know what some of you may be thinking- why give so much money to this woman? Her damages are supposed to be covered by the compensatory damages. Why should she receive three times that amount in punitive damages? She’s just getting rich! I would argue that this is a narrow perspective, mainly because having to experience something like that is surely deserving of less-tangible compensation, and even then that is not the real purpose of punitive damages.

Punitive damages are not imposed so as to allow plaintiffs to get rich quick. Punitive damages are imposed in order to punish the defendant, and thus incentivize them to do whatever they can to prevent such harm from occurring again. Knowing that coffee burn claims might now be upheld in court, McDonald’s has the option to just pay people’s medical bills when somebody reports a burn to them. If you remember, Liebeck initially asked for only 20 thousand dollars. McDonald’s generates over a million dollars a day in coffee revenues alone. This is, to McDonald’s, chump change. What might not be considered chump change, is the amount of money it would take to replace all of the coffee machines (which have only an on/off switch) in the thousands upon thousands of McDonald’s establishments around the world. Thus McDonald’s might simply choose to “pay as they go”, and just compensate people out of court whenever burns do in fact occur. This does nothing to prevent more burns, it means they’ll just pay for them when they happen.

20 Thousand? Sorry, all we have are hundreds, hope that's alright.

What punitive damages effectively do is send the message to McDonald’s that if they continue to neglect to address the issue of their coffee being so hot and burning customers, then they will be held accountable for the fact that they knew the risk existed. This is a valuable tool for our justice system, because it allows the system to not only make people whole, but prevent them from being harmed in the first place. It makes for a safer society, and it incentivizes large corporations with deep pockets to consider the safety of their customers to be important to their bottom line. Thus, though punitive damages may result in an individual plaintiff “profiting”, they actually serve a higher purpose.

It should be noted that punitive damages are the hardest damages to prove, and that once corporations are aware of them, they have the incentive to do everything they can do behave in ways that are undeserving of punishment. That’s a nice little system in my opinion.

Now, more broadly- tort reform. Tort reform is a phrase that has found wide usage among conservatives. In reality, tort reform seeks to limit the circumstances (which are based on well-established and reasoned case law precedents) in which a suit can be brought, limit the circumstances where a jury can serve as the decision-maker, and limit the maximum damages that a defendant can be held liable for (I will discuss capping damages in more detail later on). All of these are limitations on plaintiffs, and protections for defendants. Plaintiffs already bear the burden of proof. Thus a more fitting term might be tort deform, but that’s neither here nor there.  Most of the people who talk about tort reform ignorantly and erroneously cite the Liebeck case as an example of abuse.

In fact, shortly after the case hit the media, corporate PR operations have done everything they can to spread the word in a psuedo-grassroots way. You might think of such false activism “astroturf”, if it pleases you. Shameless efforts to make frivolous lawsuits a hot-button issue have gone on unabated for years now, with memberless front-groups and PR “activist” websites being funded by large corporations that want to do everything they can to convince the population that altering the tort system to disfavor individual complainants is not just common sense, but in the people’s interest. It is absolutely not.

Proponents of tort reform deceptively suggest that our judicial system is incredibly inept in terms of tort law. I, along with many tort attorneys and law professors across the country, can assure you that such is not the case. Our judicial system is based upon precedent, and when a precedent is set it may be overturned or modified by higher courts. The end result is a system that self-corrects and dynamically evolves when it is faced with new fact-patterns. This is a good system, and more importantly it is a system that is significantly more resistant to monetary incentives than the legislative and executive branches, whose relationships to campaign contributions have proven a major source of corruption and conflicts of interest.

In addition, this notion that there are an overwhelming number of claims that are, at their heart, groundless is fundamentally flawed. Why would someone who knew they had a baseless claim spend money on an attorney? I can assure you that I wouldn’t take a case that I knew to be frivolous. It wouldn’t be worth my time. Its chances of success would be negligible. I would feel ethically disgusted that I was putting another person’s money to waste while giving them false hopes of success. Those are the kinds of practices that malpractice suits are won over. It’s unsustainable on every side and thus it doesn’t happen often. The system disincentivizes frivolous suits, and thus there is no need for legislation.

Papercut? Who do I sue?

Now to get back to the specifics of what tort reform really means. You may wonder why limiting the amount of damages in tort cases might be considered a bad thing. Such a limit would mean that people with frivolous claims (that somehow manage to penetrate the heavy scrutiny of our courts) would not be able to get their multi-million dollar payday, and therefore caps on damages are a good thing, right?

Wrong, on two points. First, the number of multi-million dollar “paydays” that occur is extremely limited (and when they come, they are rarely paid out all at once, they are paid in annuities). Second, although caps theoretically prevent people from scamming the system, in reality they prevent justified claims from being fully compensated. It turns out that our system is actually pretty good at justifying damages. Say your kid chews on a toy and it happens to be coated in lead paint, and he ends up with brain damage as a result. Maybe he needs a wheelchair and will never be coherent enough to talk. How do you value damages?

The kid will need constant care for the rest of his life, and constant care means constant cost. Either a parent will have to permanently tend to the child, or more likely a professional nurse or caretaker will be required. Also, brain disorders require medical care. Frequent brain scans, developmental monitoring, and treatments may be necessary. Consultation with specialists will be inevitable. Speech, physical, and psychological therapies may be needed. The kid was going to go on to be a productive, wage-earning member of society, or maybe not. You have to use statistical averages to determine how much he could reasonably have been anticipated to have earned. Damages might also reasonably include loss of consortium (companionship, friendship, inability to meaningfully interact with parents, etc.). Serious injuries can decimate families in ways the average person can’t even imagine. People tend not to realize these things until it happens to them.

All of these factors and many, many more must be considered at the time the damages are awarded. There are no do-overs. The money you award to such a plaintiff has to anticipate how long the plaintiff will live, how inflation will effect the value of the judgement, along with all of the possible costs that are likely to be incurred over the course of a lifetime. Not all tort cases only involve spilled coffee and one-time costs, and those who support capping damages like to pretend that they do.

No matter where it's damaged, it's bad, bad news.

There are other problems with a cap. In states where there are caps in place, we have seen what the end result really is. If a person has 10 million in legitimate damages and the cap is 1 million, what do you think happens? The person gets their million, and they use it for the care or continuing care of their injury. Then when they require additional money they turn to medicare/medicaid/welfare to receive treatment and pay their bills (many injuries render the individual or their guardian unable to work and earn income), thus passing the cost along to the taxpayer. In effect, the corporation is abusing our safety net of entitlement programs by proxy. Does anyone else find it ironic that a conservative policy results in the abuse of entitlement programs?

Big corporations are money-making enterprises. The people who head them, and the markets they are bought and sold on, are driven primarily by the bottom line. This means that the true impetus at work in a large-scale corporation is profit. Profit is the lifeblood of a corporation, and I am willing to concede that a corporation is entitled to making a profit- they have to to survive and thrive to stay in business. On the other hand, paying people who are injured as the result of the negligence of the company, though it cuts into its profit, isn’t going to bankrupt billion-dollar entities like McDonald’s.

A corporation is (often) a very large, unresponsive, intimidating amalgamation. One of the most common tactics employed by large corporations is to play down their responsibility or ability to provide redress. Betting that people will be too intimidated or lack the financial means to pursue a drawn-out legal battle has been proven time and time again to be a winning bet. The odds are only improved when there is an attitude among the population that most suits against corporations are frivolous. Tort reform is the deception that has created that attitude.

Tort reform takes the power out of the hands of the jury (a power which you are constitutionally guaranteed access to, by the way) and puts it in the hands of legislators. This, in and of itself, makes a mockery of the separation of powers. We should be keeping our legislative powers in the legislature, and our judicial powers in the judiciary. Judges have the power to regulate jury verdicts that might be considered to unjustly enrich a plaintiff (as shown by the fact that the 2.7 mil in punitive damages from the Liebeck case was reduced to 480 thousand), but not even a judge has the discretion to permit damages to exceed a cap- that’s why it’s a cap. Apparently judges should be considered just as untrustworthy as juries. What a paranoid and self-defeating perspective to operate from…

The reason tort reform is championed by conservatives as a solution to our nation’s problem with frivolous suits (which remember, are not nearly as prevalent as they would have you believe) is that it isn’t really meant to be one. It’s meant to protect corporate interests, and unfortunately, today those interests are largely ensured through campaign contributions. That has been doubly guaranteed by the 2010 Citizens United SCOTUS decision that delimits corporations from contributing to political campaigns (not that they weren’t getting the money in the right pockets through PACs before, but now such techniques have been given the official stamp of approval and thus their use can only be expected to increase).

If corporations can’t get tort reform legislation passed in a certain state, they just throw tons of money at campaigns to elect pro-business judges (who will never uphold major decisions against corporations) to state supreme court positions. Thus, even if a jury finds on behalf of a plaintiff, when the corporation appeals they will eventually just arrive at a court that is biased in their favor. If their campaign fails, they’ll level bogus charges of tax fraud or corruption against the justice (regardless of if they’re evidenced), and thus remove them from the bench by forcing their suspension during the drawn-out proceedings.

I WANT YOU to hang tight while we deal with the irony of these allegations.

But wait! It gets better. In a preemptive effort to cut this entire judicial process out of the picture, hundreds of large corporations now include binding arbitration clauses in contracts, almost always hidden away in fine print. You have probably signed one. Many industries, such as cell phone or credit card industries, have these clauses no matter what company you choose to do business with.

What arbitration agreements do is either bar you entirely from pursuing a claim, or require that you pursue your claim through a company-employed mediator. Arbitration agreements that are signed by employees have been known to effectively waive the right to sue if, for instance, a person is raped on the job because the company failed to perform proper background checks on its employees and hired a convicted rapist. Rape is not the only type of injury that cannot be addressed in the courts as a result of such binding agreements.

The argument for this is that it will reduce the burden on the court system and save companies from having to spend money and time in court. However, if you think that a mediator that works for one of the parties (the corporation) is objective and acting in the interest of justice, you need to wake up. These arbitrations are secret, they’re non-transparent, and you have no route of appeal. They often require the person to keep silent about every aspect of the situation. In the example of a rape case, this means that if rape is in fact a common occurrence among female employees, women who have been raped are legally forbidden to inform their fellow female coworkers of the risk and the fact that it is going unaddressed.

There is no requirement that an arbitrator explain their decision, they simply say that one side wins (which do you think tends to win?) and the deed is done. Arbitrators are hired and fired at will by the corporation, and thus they will always rule in favor of the corporation because their job is on the line. Because binding arbitration agreements have saturated so many industries, most injuries that occur to consumers or employees where a signed contract is involved stand no chance of even making it to court these days.

Our system is corrupted. It is currently controlled by money and heavily influenced by corporate interests, rather than the interests for which it was designed- the people’s. Realize that corporations have shown themselves to act primarily in one interest- their own.

Vote. Vote! It’s the only thing we can do to resist these aggressors to our democracy. Reject candidates who support tort reform and the privatization of public services, because whether they know it or not, they are supporting corruption and the avoidance of justice. Such policies have led to some of the most agregious injustices ever to have occurred in American history.

Tort law is what keeps things fair. In a fair court, a 79 year-old woman has the same chance of winning as a massive, multi-billion dollar corporation. The tort law system is what keeps businesses from lying and cheating and stealing and making dangerous products. One of its major purposes is to force them to take their customers’ safety seriously, and thus a strong tort system is essential to the protection of the American people. Imposing caps and limitations will only result in the abridgment of that protection. Not only is tort reform unjust, it’s morally indefensible, and only through raising awareness (sharing this article will serve that purpose) do we stand a chance of abolishing such misdirected policies from our great American society. In doing so, we will make progress.

Painfully. Slow. Progress.