9 ms·

The trend of "outsource enforcement of laws to civil suits" is concerning - not event "constitutional rights"-wise but also from a "due process" (possibly there

The trend of "outsource enforcement of laws to civil suits" is concerning - not event "constitutional rights"-wise but also from a "due process" (possibly there's a better term) perspective. The number of prospective plaintiffs who could bring a case on weak grounds that you still have to spend a lot of $$$ defending is wild.

wavesounds 5y ago
There's too many lawyers, it wouldn't be a problem if law school was cheaper but the fact that so many of them have big student loan debts means they have to find reasons to sue people in order to pay of those bills.
- dane-pgp 5y ago
  Yes, it's those evil schools making all the lawyers greedy, when lawyers would otherwise just sit around hoping that no one would need their services.
- ModernMech 5y ago
  This isn't happening because of a glut of lawyers. This is happening because some people wanted to make an end-run around settled precedent, SCOTUS decided to humor them for some reason, and now all manner of nonsense is being attempted, because why not? Apparently it's okay to make a law that completely nullifies people's constitutional rights, and SCOTUS will let that just sit on the books while they take their time with their review. This is a huge loophole in the law and the justice system. Apparently there is some set of laws such that if written the right way, they can be completely and blatantly unconstitutional yet still remain in effect. This is effectively a backdoor around the constitution, and the question right now is: which laws will SCOTUS refuse to stay? And how much damage can we do in the interim period when the law has been challenged but neither overturned nor stayed? How much can we get away with?
  - WillPostForFood 5y ago
    This has nothing to do with SCOTUS or avoiding legal review. California has been doing this for over a decade, since they past the Private Attorneys General Act. It is a bad way to outsource bad policy to private citizens, and is a big handout to a powerful interest group, trial lawyers. https://www.dir.ca.gov/Private-Attorneys-General-Act/Private-Attorneys-General-Act.html https://www.dir.ca.gov/Private-Attorneys-General-Act/Private...
  - kmeisthax 5y ago
    The dirty secret is that civil lawsuits and common law are a constitutional blind spot. So much of the constitution only really applies to state actors[0], which means that private litigants are relatively unrestrained[1] in their ability to wield state power against other private litigants. In other words, the constitution doesn't care about your rights until and unless it means you being put behind bars. The reason why SCOTUS is humoring Texas is because actually stopping their legal shenaniganery requires legislating a whole new tort reform regime from the bench. 'Cause that's the only thing that would really work to stop Texas: ending or severely curtailing "private AG"[2] causes of action in the law. But that also means rolling back a lot of legal liability that corporations otherwise would have for their actions. Balancing this properly would be difficult - it's something that Congress really should be doing, not the Supreme Court... but they never did, so now here we are. [0] "State actors" means all levels of government plus private corporations acting in the role of a government. [1] For starters, the 5th Amendment does not apply to civil litigation. If the government wants to throw you in jail for 10 years for making counterfeit Mickey Mouse merch, you are allowed to refuse to testify and the court cannot assume your guilt from a refusal to testify. However, if Disney sued you for $10,000,000 for the same tort, you can be forced to testify against yourself and refusal to do so will result in an "adverse inference" being placed upon you. [2] Laws which allow private individuals to bring class action lawsuits on behalf of some public interest, in lieu of the US government prosecuting them. See https://en.wikipedia.org/wiki/Private_attorney_general https://en.wikipedia.org/wiki/Private_attorney_general
spanktheuser 5y ago
The trend is created by a lack of government regulation of corporations in the United States. Europe controls the negative externalities of capitalism with powerful regulatory agencies; I've noticed an antipathy towards their activity on HN as well. That said, it appears clear to me we need one system or the other.
- loeg 5y ago
  No, the trend GP is describing was started by Texas just last year and allowed to proceed by the Supreme Court's inaction. https://www.politico.com/news/2021/09/01/supreme-court-texas-abortion-ban-508275 https://www.politico.com/news/2021/09/01/supreme-court-texas...
  - _delirium 5y ago
    Texas did intensify it, in particular by trying to use private enforcement as a mechanism for doing an end-run around federal constitutional oversight of state law (it remains to be seen whether this will work once it's fully litigated). But private enforcement mechanisms have been an almost unique feature of U.S. law for considerably longer than that. This is a pretty good law review article from 10 years ago: J. Maria Glover (2012). The Structural Role of Private Enforcement Mechanisms in Public Law. William & Mary Law Review 53:1137–1217. https://scholarship.law.wm.edu/wmlr/vol53/iss4/3 https://scholarship.law.wm.edu/wmlr/vol53/iss4/3. A quote: > The American regulatory system is unique in that it expressly relies on a diffuse set of regulators, including private parties, rather than on a centralized bureaucracy for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is integral to the structure of the modern administrative state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it.
  - SkittyDog 5y ago
    If you believe this phenomenon started in Texas last year, you might want to do some research, and correct your post. It's been going on a lot longer than that.
Justsignedup 5y ago
The difference is that you are suing for direct harm caused. The abortion law was all about anyone suing without any direct harm caused. Very different.
- juniordevv 5y ago
  Please read the guidelines and don’t post such obvious flame bait. > Eschew flamebait.
  - juniordevv 5y ago
- nix23 5y ago
  >The abortion law was all about anyone suing without any direct harm caused. Are you sure about that? Because not even Doctors are sure about it, but most accept it as a ~acceptable Trade-off. In the end you kill a future-human, being not against abortion, i would also not take it lightly, and the potentially harmed individual cannot speak for itself.
- xdennis 5y ago
  > The abortion law was all about anyone suing without any direct harm caused. Some would say that the fetus losing its life is a bit harmful.
- nonameiguess 5y ago
  I'm going to clarify since other replies so far seem to be missing this, but the claim is not that no harmable being is harmed by an abortion. The creature being aborted certainly gets harmed, though case law up until now has said its right to not be harmed does not supersede the right of its host to not host it. The novel thing about this law is that, normally, the person bringing a suit has to have been harmed by the person they're suing. If someone burns down your house, you can sue them. I can't, even though a person was harmed by the act. The abortion law allows anyone at all to sue on behalf of an aborted fetus, even though the person bringing the suit was not harmed.
vkou 5y ago
This is what happens when the government abdicates is responsibility to, well, govern. Instead of legislature providing some clarity on what desirable behaviour looks like, you'll get case law that will eventually provide that clarity - at great expense to everyone involved.
nonrandomstring 5y ago
Letting everybody sue everyone else until we all get what we want is a kind of end-stage neoliberalism (individualisation of the legislature). To call yourself a "government", at some point you need to take a stand that contains actual values. One can understand why California would not like to go directly against BigTech as we are in Europe. And any fixed laws will quickly go out of date in a fast world. So more fundamental principles must be addressed. Positive and enabling policies are always better.
- zpeti 5y ago
  I don’t see how this system is obviously worse. Relying on a government that changes every 4 years, who are incompetent at almost everything (just take a look at the social media hearing in Congress), to police extremely complex and fast moving new markets? Is that really better than letting money hungry lawyers put together class action lawsuits related to actual damages? I just don’t see how it’s obvious that one is better than the other.
  - willcipriano 5y ago
    The government doesn't change every 4 years, just the figurehead and on the average he changes every 8 years.
    - dwighttk 5y ago
      The average is probably a little higher than 6 not quite 7(I’d guess)
  - amelius 5y ago
    Because the alternative costs $$$ and is only accessible to the rich?
makeitdouble 5y ago
You are right, and for context that trend started decades ago in the US. The general direction has been to let corporate roam free, and use lawsuits as the regulator for when their behavior bumps into externalities. Of course, as a safeguard corporations will make these lawsuits look as ridiculous and frivolous as possible, argue that people are trigger happy with lawsuits, and from time to time fabricate stories to sway the opinion in the right direction. An example of a book about this: https://press.uchicago.edu/ucp/books/book/chicago/D/bo3645510.html https://press.uchicago.edu/ucp/books/book/chicago/D/bo364551... About nice heart-warming stories of frivolous lawsuits: https://web.archive.org/web/20210124041909/https://www.latimes.com/archives/la-xpm-2005-aug-14-fi-tortmyths14-story.html https://web.archive.org/web/20210124041909/https://www.latim...
newaccount2021 5y ago

wavesounds 5y ago

There's too many lawyers, it wouldn't be a problem if law school was cheaper but the fact that so many of them have big student loan debts means they have to find reasons to sue people in order to pay of those bills.

dane-pgp 5y ago
Yes, it's those evil schools making all the lawyers greedy, when lawyers would otherwise just sit around hoping that no one would need their services.
ModernMech 5y ago
This isn't happening because of a glut of lawyers. This is happening because some people wanted to make an end-run around settled precedent, SCOTUS decided to humor them for some reason, and now all manner of nonsense is being attempted, because why not? Apparently it's okay to make a law that completely nullifies people's constitutional rights, and SCOTUS will let that just sit on the books while they take their time with their review. This is a huge loophole in the law and the justice system. Apparently there is some set of laws such that if written the right way, they can be completely and blatantly unconstitutional yet still remain in effect. This is effectively a backdoor around the constitution, and the question right now is: which laws will SCOTUS refuse to stay? And how much damage can we do in the interim period when the law has been challenged but neither overturned nor stayed? How much can we get away with?
- WillPostForFood 5y ago
  This has nothing to do with SCOTUS or avoiding legal review. California has been doing this for over a decade, since they past the Private Attorneys General Act. It is a bad way to outsource bad policy to private citizens, and is a big handout to a powerful interest group, trial lawyers. https://www.dir.ca.gov/Private-Attorneys-General-Act/Private-Attorneys-General-Act.html https://www.dir.ca.gov/Private-Attorneys-General-Act/Private...
- kmeisthax 5y ago
  The dirty secret is that civil lawsuits and common law are a constitutional blind spot. So much of the constitution only really applies to state actors[0], which means that private litigants are relatively unrestrained[1] in their ability to wield state power against other private litigants. In other words, the constitution doesn't care about your rights until and unless it means you being put behind bars. The reason why SCOTUS is humoring Texas is because actually stopping their legal shenaniganery requires legislating a whole new tort reform regime from the bench. 'Cause that's the only thing that would really work to stop Texas: ending or severely curtailing "private AG"[2] causes of action in the law. But that also means rolling back a lot of legal liability that corporations otherwise would have for their actions. Balancing this properly would be difficult - it's something that Congress really should be doing, not the Supreme Court... but they never did, so now here we are. [0] "State actors" means all levels of government plus private corporations acting in the role of a government. [1] For starters, the 5th Amendment does not apply to civil litigation. If the government wants to throw you in jail for 10 years for making counterfeit Mickey Mouse merch, you are allowed to refuse to testify and the court cannot assume your guilt from a refusal to testify. However, if Disney sued you for $10,000,000 for the same tort, you can be forced to testify against yourself and refusal to do so will result in an "adverse inference" being placed upon you. [2] Laws which allow private individuals to bring class action lawsuits on behalf of some public interest, in lieu of the US government prosecuting them. See https://en.wikipedia.org/wiki/Private_attorney_general https://en.wikipedia.org/wiki/Private_attorney_general

spanktheuser 5y ago

The trend is created by a lack of government regulation of corporations in the United States. Europe controls the negative externalities of capitalism with powerful regulatory agencies; I've noticed an antipathy towards their activity on HN as well. That said, it appears clear to me we need one system or the other.

loeg 5y ago
No, the trend GP is describing was started by Texas just last year and allowed to proceed by the Supreme Court's inaction. https://www.politico.com/news/2021/09/01/supreme-court-texas-abortion-ban-508275 https://www.politico.com/news/2021/09/01/supreme-court-texas...
- _delirium 5y ago
  Texas did intensify it, in particular by trying to use private enforcement as a mechanism for doing an end-run around federal constitutional oversight of state law (it remains to be seen whether this will work once it's fully litigated). But private enforcement mechanisms have been an almost unique feature of U.S. law for considerably longer than that. This is a pretty good law review article from 10 years ago: J. Maria Glover (2012). The Structural Role of Private Enforcement Mechanisms in Public Law. William & Mary Law Review 53:1137–1217. https://scholarship.law.wm.edu/wmlr/vol53/iss4/3 https://scholarship.law.wm.edu/wmlr/vol53/iss4/3. A quote: > The American regulatory system is unique in that it expressly relies on a diffuse set of regulators, including private parties, rather than on a centralized bureaucracy for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is integral to the structure of the modern administrative state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it.
- SkittyDog 5y ago
  If you believe this phenomenon started in Texas last year, you might want to do some research, and correct your post. It's been going on a lot longer than that.

Justsignedup 5y ago

The difference is that you are suing for direct harm caused. The abortion law was all about anyone suing without any direct harm caused. Very different.

juniordevv 5y ago
Please read the guidelines and don’t post such obvious flame bait. > Eschew flamebait.
- juniordevv 5y ago
nix23 5y ago
>The abortion law was all about anyone suing without any direct harm caused. Are you sure about that? Because not even Doctors are sure about it, but most accept it as a ~acceptable Trade-off. In the end you kill a future-human, being not against abortion, i would also not take it lightly, and the potentially harmed individual cannot speak for itself.
xdennis 5y ago
> The abortion law was all about anyone suing without any direct harm caused. Some would say that the fetus losing its life is a bit harmful.
nonameiguess 5y ago
I'm going to clarify since other replies so far seem to be missing this, but the claim is not that no harmable being is harmed by an abortion. The creature being aborted certainly gets harmed, though case law up until now has said its right to not be harmed does not supersede the right of its host to not host it. The novel thing about this law is that, normally, the person bringing a suit has to have been harmed by the person they're suing. If someone burns down your house, you can sue them. I can't, even though a person was harmed by the act. The abortion law allows anyone at all to sue on behalf of an aborted fetus, even though the person bringing the suit was not harmed.

vkou 5y ago

This is what happens when the government abdicates is responsibility to, well, govern. Instead of legislature providing some clarity on what desirable behaviour looks like, you'll get case law that will eventually provide that clarity - at great expense to everyone involved.

nonrandomstring 5y ago

Letting everybody sue everyone else until we all get what we want is a kind of end-stage neoliberalism (individualisation of the legislature). To call yourself a "government", at some point you need to take a stand that contains actual values. One can understand why California would not like to go directly against BigTech as we are in Europe. And any fixed laws will quickly go out of date in a fast world. So more fundamental principles must be addressed. Positive and enabling policies are always better.

zpeti 5y ago
I don’t see how this system is obviously worse. Relying on a government that changes every 4 years, who are incompetent at almost everything (just take a look at the social media hearing in Congress), to police extremely complex and fast moving new markets? Is that really better than letting money hungry lawyers put together class action lawsuits related to actual damages? I just don’t see how it’s obvious that one is better than the other.
- willcipriano 5y ago
  The government doesn't change every 4 years, just the figurehead and on the average he changes every 8 years.
  - dwighttk 5y ago
    The average is probably a little higher than 6 not quite 7(I’d guess)
- amelius 5y ago
  Because the alternative costs $$$ and is only accessible to the rich?

makeitdouble 5y ago

You are right, and for context that trend started decades ago in the US. The general direction has been to let corporate roam free, and use lawsuits as the regulator for when their behavior bumps into externalities. Of course, as a safeguard corporations will make these lawsuits look as ridiculous and frivolous as possible, argue that people are trigger happy with lawsuits, and from time to time fabricate stories to sway the opinion in the right direction. An example of a book about this: https://press.uchicago.edu/ucp/books/book/chicago/D/bo3645510.html https://press.uchicago.edu/ucp/books/book/chicago/D/bo364551... About nice heart-warming stories of frivolous lawsuits: https://web.archive.org/web/20210124041909/https://www.latimes.com/archives/la-xpm-2005-aug-14-fi-tortmyths14-story.html https://web.archive.org/web/20210124041909/https://www.latim...

newaccount2021 5y ago