The Deadman Night Rider

A forum for evening students of the SMU Dedman School of Law and other outlaws..

Tuesday, November 08, 2005

When the law has to be taken back from the lawyers

Professor David Kairys of Temple University is quivering with righteous indignation over at Slate over federal pre-emption of public nuisance liability suits against firearms manufacturers and dealers.

I used to read stuff like this and thank God I never went to law school. Now I've changed my mind--there are way too many guys like this carrying bar cards out there with no one to cancel them out. If nothing else, maybe I can contribute some ballast.

Kairys claims that the immunity from suit granted makes the gun industry exempt from the rule of law that applies to the rest of us, and that's true. But it's not unprecedented and it's not wrong. People like Kairys fought against making 911 operators immune from being sued for negligence for providing first aid advice over the phone. They also fought against "Good Samaritan" laws that forbade jackals like him from suing you for accidentally cracking someone's rib while saving them from choking. In both cases, they relied on the same argument: that it would put some people outside the rule of law that applies to the rest of us.

But thankfully the law doesn't just belong to the lawyers--it belongs to the rest of us, too.

For someone in a profession built on exceptions, Professor Kairys seems awfully sensitive to this one. One gets the feeling there's some other motive guiding this cause. He cites an ATF stat that 57% of guns used in crimes are sold by 1% of dealers, but instead of going after that 1%, he wants to have mass tort available against the entire industry. It looks like he's upset that Congress just deep-sixed his dreams of being the John Banzhaf of gun litigation. Be sure to check out this guy's webpage--it's an eye-opener.

Kairys thinks the gun industry should be liable civilly because they continue to produce guns with the knowledge that a certain percentage of them wind up on the street and get used in crimes, which he compares to liability to clean up chemical spills or, better yet, to 'dram shop' laws that hold bars liable for selling to drunk patrons. The problem is that with both those examples we can identify every party all the way down the line--the company that spilled the chemicals, the bartender that served the drinks, the drunk guy who got in the car, etc. Gun manufacturers and dealers only know that statistically some of their product will get abused, but they have no idea who the criminals will be.

We have to draw the line somewhere, and tort lawyers damn sure shouldn't be the ones to draw it. Take my post below for example. Kairys would sue the entire food industry for knowingly producing almost twice as many calories per person every year than the average needed to maintain bodyweight. We see the effects everywhere, and it costs us alot more than gun violence does, right? Why should we let these corporate food guys reap their windfall profits knowing they're creating a public nuisance?

Tell me another lawyer joke...


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