Today, on NewTalk.org, the online discussion kicked off on: What is the role of the courts in making social policy? It will continue through Thursday. And here you can retrieve the continuing conversation.
Post the decisions of the Rhode Island Supreme Court in the lead paint public nuisance ruling and that of the California Supreme Court in gay marriage, this is certainly a front-burner issue.
I keep asking myself, for example, if the RI SC made social policy via the legal system of the state. Clearly, the whole lead paint public nuisance matter carried plenty of social policy baggage. In fact, I even gave the plaintiff's request for a new trial for compensatory damages a shot - already RI state agencies had spent more than $26 million on preventing, diagnosing and treating lead problems. But the RI SC didn't bite. Here is the RI SC's complete ruling Download statev.LeadIndustriesAssoc.,Inc..pdf
The panelists are high-powered, including Philip Howard ["Death of Common Sense"] of Common Good and New Talk, Russell Wheeler of The Brookings Instititution, Judge Edith H. Jones, Chief Judge of U.S. Court of Appeals for the Fifth Circuit and Alan Morrison, Special Counsel for Administrative Reform and Litigation, Fair Elections Legal Network.
The moderator is Gillian Hadfield, Professor of the University of Southern California. Any of us can jump in and leave a comment but in this august company even this blogger has fallen silent, at least on officially posting on the site. But, here back in Dodge, I'm my usual opinionated self.
In my view, Howard drills down to the emotional part of this issue when he asks:
"Perhaps this indictment of activism is too simplistic. Doesn't it depend on the context? Someone sues the dry cleaners for $54 million for losing a pair of pants - the claim should be dismissed, or bounced to small claims court. Otherwise justice is used for extortion. Someone sues for an accident in the playground - arguing that seesaws are unreasonably dangerous. Just the availability of the claim results in the removal of seesaws around the country. Should a plaintiff have this unilateral power? Or should a judge defend social norms of reasonable risk as a matter of law?"
What left the bad taste in our mouths, that is, we lead paint watchers, is that the plaintiff not only had the power to file the public nuisance lawsuit in RI and other states and cities. But it also had the power to re-file it after a mistrial.
Among the results? It took nine years, a major hit to the defendants' reputations and stock prices, and millions in legal fees before the RI SC four Justices said the suit should have been dismissed before this matter went to court. And now, in Ohio and possibly in California, the plaintiff will again have that same unilateral power. Will it take another nine years for the suit to be tossed?
Another takeaway from this online conversation [Doc Searls et al. who authored "The ClueTrain Manifesto" would say that NewTalk.org is doing this just right] is Morrison's point that, "the term judicial activism is not a helpful one and is generally applied to a case with which the speaker disagrees on the merits."
Piggybacking on that line of thought, I wonder if the plaintiff in RI lead and in other jurisdictions will eventually rail against the "judicial activism" which derailed this sort of suit?
Those who want more information about NewTalk.org might contact Jessie duPont at Goodman Media, 212-576-2700, x223, Jdupont@goodmanmedia.com.
Note: I am advising my clients to consider this same NewTalk.org type of conversation for their websites and blogs. With transportation costs so high, who can afford to schelp in the flesh to these kinds of breakthrough dialogues? Not this blogger/communications consultant/indie journalist. And not many of my clients and their target markets/audiences.
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