Wednesday, March 12, 2008

Governmental Protection

On Sunday, I got into a heated discussion with my dad over this article.
A brief outline: Arelia Taveras, a lawyer from New York, is suing several Atlantic City Casinos, claiming that they should have noticed that she had a gambling addiction and cut her off when it became apparent that she was playing for days at a time without leaving the tables to shower, eat, or sleep. In all, she lost about $1,000,000 and embezzled money from her clients in order to continue gambling. She was disbarred and has to pay back the money she stole, as well as $58,000 in taxes, etc.

My dad's point was that people sue for many reasons, but "a quick buck" is not really one of them. Lawsuits are drawn-out, costly, and there is a very small chance of actually getting any money in the end. Rather, many suits, such as the infamous McDonald's coffee cup case, are useful for getting industry to reform when government has not imposed specific regulations. Congress may not spend much time on regulating the temperature of fast food coffee, but Stella Liebeck's suit spurred the industry's self-regulation, and now they no longer serve drinks that are capable of causing third-degree burns. Even when the industry does not regulate itself, civil suits often start the ball rolling on public opinion and eventual legislation, as with the suits against cigarette companies. Those plaintiffs rarely win, but they give the issue an airing in court and force judges and juries to rule on the evidence and suggest areas for possible regulation.

I agree with these points. There is no need for massive tort reform. Most rubbish suits get thrown out, as they should. It is vitally important that consumers and citizens be able to bring civil litigation when they are injured by corporations because withholding your business, while noble, doesn't do very much. You're still going to lose because the corporation has so many lawyers and so many resources, but, with luck, your issue will get some attention and a state legislator in Vermont or Oregon will make your concern into a bill, and in 100 years, everyone will be incredulous when they hear that in 2008, it was perfectly legal to let children ride on the schoolbus without a seatbelt.

But there is another issue that I couldn't get my dad to acknowledge. In part, I am writing this post because I've been thinking about it a lot and maybe I can be a bit more articulate now.

The issue I have is that I believe that government regulation has to be primarily about providing access to information and choice, but then not restricting those choices. This is where I differ from my dad. He thinks it would be perfectly ok to make cigarettes illegal full-stop. I don't think so. I do think that cigarettes should come with pictures of diseased lungs on the pack, a red-letter warning marking them as addictive should be on a tape you have to break to open the pack, you should have to be 21 to buy them, they should cost $10.00 in school-supporting taxes, and you should not be able to smoke in a place where other people (including waitresses and bartenders) might be exposed to your second-hand smoke. Arrest anyone who gives/sells tobacco to a minor, by all means. But if all the information is available to you, and you still decide to smoke, I don't think that the government can tell you that you can't. The same goes for marijuana.

What I am saying is that the government has a responsibility to protect you by ensuring that you have information and access to alternatives, but it cannot protect you from your choices, even if those choices are self-destructive.

(Caveat: This is often an unrealistic standard. Even if you have all of the information in the world, corporations will find a way to use their money and power to screw you over. In fact "all information" should probably be amended to "the best and relevant information" because a deluge of useless and confusing information can be just as bad as no information at all. Even more problematic is the question of access to alternatives. Even if you know you should be eating lots of fresh fruits and vegetables, if you live in a neighborhood where access to fresh food is restricted or you can't afford to buy fresh foods, you are not really making a free choice. Lack of access is the same as coercion.)

One of the reasons I believe this is that the government's "protection" is often no protection at all, especially when the bodies that they are "protecting" are female or belong to people of color.

A good example is coerced cesareans. I'm not talking about women who are pressured by their doctors and insurance companies to have c-sections — I'm talking about kicking, screaming women being strapped down and cut open by court orders. If the government decides that a doctor knows better, even if he/she is violating your religious principles or going to extraordinary lengths to "save" the life of your 22-week-old fetus, the fact that you don't want to have your body cut open becomes irrelevant.

Remember Angela Carder, the woman who was killed by a court-ordered cesarean in 1987? Carder was pregnant when she found out that she had cancer. She asked to be treated for her cancer, even though the chemotherapy might have hurt her 26-week-old fetus. The hospital decided that they wanted to do an emergency cesarean at 26 weeks, even though Angela was weak and sick and dead-set against it. The hospital got a court order to perform the cesarean. The baby lived 2 hours, Angela lived for 2 days.

The ACLU tells the rest of the story:
Court-ordered c-sections are a particularly egregious abuse of state authority because this surgery tends to be carried out on society's most vulnerable, powerless women. In 1987 the New England Journal of Medicine published a study of court-ordered c-sections that revealed that 81 percent of the patients were low-income women of color.
These are women who have all the information they need in order to make a good decision. They are not stupid, they are not evil, and they are not cackling witches who want their babies to die. In fact, they have more information than the government does: they know their own religious convictions and they may have a different way of looking at their lives and the lives of their families. Where the government sees "live mother," a woman may see "mutilated me." Where the government sees "live baby," a woman may see "severely disabled child in perpetual pain." The evil is in restricting the free choice, whether a corporation is restricting your free choice by manipulation or the government is restricting free choice more directly.

There are tricky scenarios. Do I think heroin should be legalized? I guess it comes down to whether heroin users are making a free choice. Addiction is a form of coercion, so I'd say they aren't, and that the government can ban a substance that is clearly addictive to most of the people who use it. The difference between the heroin addict and the gambling addict is just a matter of degree: heroin is addictive to almost everyone who uses it, and people who aren't addicted don't use it. There are plenty of people who can gamble without becoming addicted, so there is a less compelling case for a comprehensive ban.

It's not all blood and guts, though. What about me? I am of that fought-over species, the "woman of child bearing age." There may be evidence that tuna and other large fish contain an unhealthy amount of mercury, which can be stored in the body and possibly cause birth defects. Should the government prevent me from eating sushi? Or should they provide me with this information and trust me to be an adult and make an informed choice for myself? I don't mean to be dramatic, but it is incredibly insulting to be told by the government that I should consider myself as perpetually "pre-pregnant." It would be even worse if they decided to protect me from myself and ban me from all Japanese restaurants.

What about the bill recently introduced into the Mississippi state legislature that would prohibit restaurants from serving obese people? Clearly, this has zero chance of passing, but it's an interesting question: can the government protect you from your choices, even if those choices are bad for you?* Again, I'm all for choice: require that restaurants put the calorie counts right on the menu. Make McDonalds give a bajillion dollars per year to Jump Rope for Heart. If a restaurant's business practices are unnecessarily harmful — using harmful ingredients when they could be using healthier ingredients, restricting access to healthy food in low-income neighborhoods, etc. — nail the bastards. But don't put a judge between me and the onion rings. I have the right to hurt myself as long as I know what I'm getting myself into.

So back to the gambling suit. I say, post the odds of winning on every game, let gambling addicts voluntarily ban themselves from casinos (the casinos already do this), provide information about gambling addiction, hell, require that every casino keep a team of behavioral scientists on staff to monitor behavior on the floor and identify potential problem gamblers. But don't make gambling illegal. And if people are offered information and help and choose not to take it, don't hold the casino accountable. The government doesn't always know best, and it has to respect choices when those choices are made freely, even if the choice seems like a poor one. If the government holds the casino responsible for Taveras' gambling problem, they are restricting her personal choice and denying her personal responsibility. Maybe that's not so bad in this case, but what about when the government restricts other personal choices? If she can prove that gambling really is like heroin, or at least get people to start down that mental path, fine. But the people must always be wary of the government trying to protect them too much, especially while the people who govern are drawn from such a small group of the governed.

As for the original question: should Arelia Taveras be allowed to bring this suit against the casinos? Of course she should. If it were meritless, the judge would have tossed it out in short order. Just because she has very little chance of winning doesn't mean it won't do some good.

Also, how nerdy is it that my dad and I argue about torts?

*Clearly, eating is not bad for you. The gambling addict doesn't have to go to the casino, but everybody has to eat. Are fat people supposed to go cold turkey and just live off their fat reserves until they reach a socially-acceptable weight?

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