Wednesday, July 18, 2012

Yo Mama part 2

I realized that my last post about ad hominem attacks had a “missing middle.” I just assumed (as Governor Perry also seems to have assumed) that everyone would understand that a certain phrase he’d employed in his Austin American Statesman editorial was intended to be insulting. But some insults are more subtle than others. If you call someone “a rascally knave,” it’s pretty obvious that you’re engaged in trash-talking. If you call someone “a law professor with ties to trial lawyers,” well, that’s a bit more subtle.
Or is it?
The tort-reform lobby has been so wildly successful at their language games that “greedy-trial-lawyer” has become a common compound noun. Even many trial lawyers, who’d spent their entire professional lives doing insurance defense trial work, got caught up in the game, bashing their own kind—with a special emphasis on those on the other side of the “v.” So, when the campaign against “greedy-trial-lawyers” culminated in 2003 with new laws curtailing lawyers’ ability to pursue personal injury claims that also led to putting many of the lawyers who had routinely defended those kinds of cases out of work. Too bad, so sad.
But really, this is nothing new. Since at least Shakespeare’s day, a person could count on lawyer-bashing as a way to score easy points.
You’ve heard the oft-quoted line: “The first thing we do, let’s kill all the lawyers.” You may not know that this line is shouted by “Dick the Butcher” in Henry VI, Part 2 to “Jack Cade,” the leader of a rag-tag populist uprising. Shakespeare probably knew the line would be good for a cheap laugh because he could count on his audience to empathize with the frustration that many feel regarding lawyers’ social clout. But it is clear from the context that Shakespeare himself did not think that lawyers should be the first before the firing squad. Nor did he seem to admire the likes of Dick the Butcher or Jack Cade. Quite the contrary. Those characters, with their comical lawyer-bashing, symbolize the highly uncivilized impulse to abolish the rule of law and bring on anarchy as a self-serving, short-term response to both real and perceived injustices. Cade says, “Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? That parchment, being scribbled o’er, should undo a man?” This colorful, rhetorical question captures a rather scary disdain for literacy, written agreements, and the very concept that people should be bound by the contracts they sign. Nothing indicates that Shakespeare was of Jack Cade’s mindset. Sure, this infamous request that Cade begin his reign by killing all lawyers has been used to malign lawyers through the ages. But this fact is ironic. It is also somewhat understandable. In other words, Shakespeare packs a lot into that anti-lawyer exchange:  frightening, irrational rage (against lawyers and all that they stand for) and legitimate exasperation on the part of the powerless (with lawyers and all that they stand for).
The correspondence between the promises made by those who have so zealously pursued tort reform and the actual results of such reforms is still being investigated. Take a look at some more results compiled by Professors David A. Hyman of University of Illinois College of Law, Charles Silver of UT Law, Bernard S. Black of Northwestern University School of Law, the Kellogg School of Management, and the European Corporate Governance Institute, and Myungho Paik of Northwestern University School of Law: Their study suggests that Texas’s tort reform efforts relied in part on a sketchy premise about the status of physician supply before reforms were implemented and now evidence suggests that that supply has not measurably improved since—“whether one looks at all patient care physicians in Texas, at high-malpractice-risk specialties, or at rural physicians.” Ultimately, what makes science and the law so grand is that these areas of human endeavor require that falsifiable assertions be tested and demand hard data and other authoritative support before assertions are treated as facts.
At least on a gut level, the tort reform movement teaches that all lawyers should pledge to do their bit (1) not to engage in practices that give solace to the mindless lawyer-haters out there and (2) not to let people get away with denigrating a largely noble profession by recourse to overt name-calling and subtle insinuation.

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