Why I Call the “Police” “Pigs”

I was raised to respect the police and regard them as potential protectors, so why do I now call them pigs? It’s an ugly name. Am I the one who has changed? Or are they?

What is Police Work?

Police work is many things, but as police around the country like to sum it up, it’s to “serve and protect” their communities. That’s a good place to start, and it implies certain things. It implies, for example, that they take a broad view of the community and commit to protect them all. Because of the “front-line” nature of the work, it requires a coolness and practical fairness, boldness in times of personal danger, but care in respecting those “boundaries” known as constitutional rights. It requires integrity and truthfulness because some problems require cooperation, and the nature of those situations must be communicated honestly in order to create an effective, protective response. In times of danger and confrontation, it requires de-escalation to avoid needlessly harming the people you are sworn to protect.

Of course nobody is perfect, but effective police work requires consistent attempts to do the functions of the job and to improve your ability to do them.

The Pigs Don’t Do Police Work

Anybody who has watched videos of recent protests knows that the current group of pigs are not doing police work. We’ve watched them tase unarmed and harmless people, shoot sleeping women, murder fleeing children. We’ve watched them charge into peaceful protestors randomly clubbing, gassing and tasing. We’ve seen them deliberately maim journalists, knock out old men doing nothing wrong, and even ride over the heads of unconscious people on the street.  These are the actions of an occupying force, but they are not, by any means, legitimate policing actions of communities they were supposed to protect and support. They are the actions of brutal pigs.

Police as People

I have, in my life, known many police men and women, both personally and professionally. Personally, if your appearance is within certain limits (which for many pigs excludes non-whites and many of the disabled automatically), they are upstanding and decent – although even the best of them I’ve known are trustworthy only within certain fairly limited circumstances. I would never want my life to depend on an officer’s integrity in the face of any contrary temptation. They are often brave, but rarely truly honest.

Even the veneer of integrity and honesty is shed under any situation calling for integrity in the face of an external challenge to their authority or a separation from other pigs. The thin blue line is very real, and pig culture simply does not value truth-telling in the least. Nor does it recognize or respect pain in anyone but themselves. Headlines announcing that two pigs have been shot “for no reason” at a protest where several citizens were killed or maimed by the pigs without mention is a perfect illustration of pig culture. It’s “them or us” all the way, and the pigs mean to come out on top. They make no attempt to serve or protect, none to de-escalate scenes of potential violence, no effort to police. They are there to SUPPRESS. That is what they do, and that is why they are an army of occupation. They are pigs.

But Name-Calling Dehumanizes

But why do I call them that? It’s one thing to think a group of people have become evil, but another to call them names – to “dehumanize” them as some have bleated in my direction. I do it deliberately and for a purpose. In that connection I’ll point out that I do NOT call Republicans or Democrats names, though I do not like either group as a class. I very rarely call anybody a name for the simple reasons that it is demeaning, whereas I usually attempt to uplift, and it moves the conversation away from reasonable problem-solving, where I excel, to irrational one-upsmanship.

So again, why do I call the pigs “pigs?”

I do it because the pigs have a fantasy. In their fantasy, they’re always the heroes and everybody loves them. For many, that “love” is more akin to fear, but pigs love to see adoration and respect wherever they go. Their fantasy requires that everyone honor and respect them, and this is so even while they are deliberately maiming and murdering the people they are charged with serving and protecting. I call them pigs because that’s what they are, and because they need to hear that people are seeing through their twisted fantasies and seeing who they are. I want them to become demoralized. I want them to start quitting. I want them to start refusing to follow orders to maim and kill the people they are sworn to protect.  Peeling away their fantasy as beloved heroes is an important part of that, and that’s why I call them pigs.

A Strategy for “Revolution”

I don’t know if this is going to sound radical, or just like common sense. This might be one of those times when common sense is radical.

End the “Duopoly”

We live in a time when pigs (I will not call them “police”) routinely murder black people without consequence and specifically seek to maim people who dare to protest their violence, when right-wing death squads roam the streets with the acquiescence and connivance of the pigs and the politicians, and the president repeatedly suggests that he will not respect the outcome of an election. At the same time, the Democrats undermine protests, promise action they never deliver, routinely cooperate with the Republicans to militarize the pigs, increase the military budget, decrease human rights, and do every other bad thing the Republicans do. At the local level, as often as not they are the ones siccing the dogs on us.

We say “end the duopoly.” We say we won’t vote for either party or that there is no material difference in the parties on which to base a choice. How do we make things change?

I think it starts with taking seriously our claim that there’s no difference between the parties. I believe this statement applies not only to the candidates, but also to the voters. If we say there’s no difference between Republicans and Democrats, we are also saying that Republicans are as likely to listen to us as Democrats. But we never talk to Republicans.

We need to talk to the Republicans. If you watched Cornell West talking to Tucker Carlson and noticed how quickly they agreed on certain principles of basic human dignity you see the way. Of course the devil is always in the details, but we need to start finding that common ground of values that we share with MOST Republican voters. Yes, they are accustomed to sloganize the differences – and so are we. But human decency, basic opportunity, freedom and even peace are basic values we could agree upon with most Republicans. I do not believe the Democrats hold more of these values than Republicans.

Republican leadership has waged a relentless cultural war, but so have the Democrats. The Republican leaders foment racism, but the Democrats foment quietism. The Republicans think they’re the only people who care about the country, but the Democrats honestly believe the reason Republicans disagree with them on virtually any position is that the Republicans just aren’t as smart – and they think we’re “children” for not closing our eyes, pinching our noses, and voting for the people who have betrayed us constantly for the past 75 years.

We must talk to Republicans. We need a cultural exchange program and a long-term goal to cool some of the hot points of dispute between us.

And we need to do the same with Democrats.

We must regard both parties’ leadership as equally opposed to our values, and we must work to understand both the differences and common ground with the people. That way we can build rapport and dissolve hostilities. We say it, and we should mean it: the leadership of both parties is aligned with each other against the people they are supposedly representing. The leaders are of the 1%, and the people are the 99%. We should strive to bring the 99% together regardless of their current party affiliation.

We Must Have our own Political Party

I had hoped, this year (2020) that the progressives would be able to capture the Democratic party and redirect it towards the people’s interests. I am satisfied now that it cannot happen. The DNC is a corporation acting on behalf of its owners, and it has a stranglehold on the party. I conclude it is no longer worth attempting to salvage. Instead, the people must have a new party, and it cannot be in corporate form. It needs a broad platform of human and eco-friendly goals and positions.

Like any large group, we must not demand uniformity or compliance with every platform plank (i.e., a “purity test”). Instead, we must seek broad agreement and then exercise the freedom to form coalitions with either party on specific goals.

The Democratic party is a sham organization. They are not better partners with us on any goal than the Republicans might be. Instead, we can work with either party to accomplish specific objectives without sacrificing the people’s party’s identity and coherence. We must end ALL loyalty to either party, and for progressives that means mainly ending lingering ties to the Democratic party.

Non-Violence and Organization

I can’t remember who said it, but I saw the question posed: “what more organization do the protests need?” They’re happening, won’t they naturally lead to a change of political order? And what about that “general strike?”

Change takes time – a lot of time, and particularly when you’re talking about changing an entire country. The Republicans have been deliberately working on cultural change since Barry Goldwater lost in the 1960s. And they have had a plan. That is, intellectual leaders of the conservative party have been talking explicitly about the need to address cultural values of the American people for that long, and while specifics may change, there has been remarkable cohesion.

That is what we need. We do not need violence. We don’t need to “overthrow” anybody or even “throw anybody out.” We need to help the American people see what their interests are from the inside out. Of course actions will follow, but the strategy must be a vision that incorporates fifty or a hundred years of movement. Such a strategy would not look at a “general strike” lasting one day to say whether it succeeded or failed. The questions, instead, would be: did it move us in the direction we wanted to go? How do we make it more effective? How many and how long are best? A true strategy sees action in the context of a long-term goal.

In that context, non-violence is necessary for strategic and tactical reasons. “Strategic” because the changes we want must be voluntary (among the 99%), and violence is inherently coercive. “Tactical” because our country is now spending a trillion dollars per year creating weapons and the people to use them. Violence against such overwhelming force is doomed. Using moral persuasion and economic incentive is our only chance, and it won’t be easy.

Strategic non-violence is not wimpy. It isn’t just holding up signs and walking around. It isn’t “protesting,” though all of these things can be part of it. Strategic non-violence means we must not cooperate with the oppressors. We must take the profit out of it. In my view, that means we must move sharply away from the consumerism and wastefulness that keeps us in thrall to cheap labor. Where possible we must seek and create food self-sufficiency, and we must step away from all the sweet advantages of advanced capitalism. Where that is not possible, we must create alternatives.

The American “status quo” depends on mindless consumerism above all things. That is what keeps us dependent upon material possessions and forces us to work for people we know are exploiting us. Every step away from that will bring violent reprisal. Any step to get in the way of it will also bring violent reprisal. Every part of dismantling the “security state” will bring violent reprisal, and against this our only weapon is to persist in removing the profit from our exploitation.

At the same time, there will be electoral steps that can and should be taken, of course. There will be demonstrations and other political direct actions. Nothing I say here detracts from that. But the strategic view must be to remove the profit from inhumane actions and to encourage things that will improve sustainability and the lives of us all. And this is a process that will take decades. This must be the lens through which we view all actions.

Should the Democrats Pack the Courts?

Ruth Bader Ginsburg has recently died, mere weeks before the election in November. Naturally, the Republicans have called for immediate nomination and confirmation of a successor, while the Democrats are calling for a moratorium until after the elections. The Democrats threaten to “abolish the veto and expand the Supreme Court” if the Republicans push through a nominee, and some threaten to “burn it all down” if that happens. For reasons I discuss below, I believe the Democratic strategy is wrong, and the threats are empty.

The Democrats’ Position

Everyone knows that the Republicans managed to block some of Obama’s nominees, and that they justified doing so on the pretense of letting the voters decide (through their votes for president). Many think the Democrats played along, confident that Hillary Clinton would win. Nobody who watched the debacle play out in 2015-16 can seriously claim to have believed the Republicans were making a principled decision. It was obviously a decision made because they had the power to do so, and the Democrats didn’t stop it either because they misread the political winds or could not stop it.

The Democrats now seek to recharacterize that little exercise in realpolitik as a sort of negotiated bargain that established a new rule of governance. The Republicans are basically laughing at this and, still holding the Senate majority, planning to charge ahead. The Democrats threaten various things if that happens, including primarily a plan to expand the court and abolish the filibuster “in the next term when they have the majority in the senate and the presidency. Should they do this?

The Next Term

As a side note, the Democrats seem to be assuming they will win the presidency and the Senate in November. They seem to think they’re ahead now. I doubt both of these assertions, and if the Republicans do as well, the Democrats’ threats must ring hollow indeed. But what if the Republicans win and decide themselves to do what the Democrats have threatened? They have already succeeded in packing the courts with moronic ideologues, but if they increased the size of the system they would increase that domination and proactively prevent the Democrats from doing it if they ever happen to win. The Democrats, having endorsed the plan and announced it, would be hard pressed to oppose it, although I trust they would. It would come at some political cost, though.

Now let’s consider the actual plan.

Packing the Courts

The most common Democrat idea for expanding the courts is to increase the Supreme Court by 4, to a total of 15 Justices and to add a host of new federal district judges. To ensure that the Senate would have time to confirm all the new appointees, they would further curtail the ability of the minority to argue or slow things down. Since the purpose of these parliamentary mechanisms is to give everyone a better chance to learn about the nominees and, through filibuster and cloture, to test the political will of the party nominating, eliminating them seems likely to reduce the quality of judges. 

In theory, the Senate should not be confirming incompetent judges. The Republicans have managed to seat quite a few incompetent judges lately, but the solution is not for the Democrats to do the same thing. The more ideologues in the courts, the less “justice” is in the system. Even while the Democrats enjoyed a Senate majority, in other words, the plan would damage the courts’ integrity and might not even accomplish its goals in the short term.

The Democratic candidate is Joe Biden, who has run one of the most insipid campaigns in history and has famously promised his big-money donors that he would bring “no fundamental change” if elected. Harris is just as bad. Obama ran a campaign that at least promised change, but he betrayed most of those promises. In my opinion, at least, that’s why the Republicans now hold a majority of the Senate. If Biden somehow wins and starts out with a Senate majority, then, I see him holding it as unlikely. In any event, though, the political worm always turns eventually. Thus the Democratic plan would eventually mean the country would face an even larger problem of right wing ideologues in the court.

Would Expanding the Courts be a Good Idea?

Aside from ideologies, do we need an expanded court system and more judges on the Supreme Court? Are thirteen judges better than nine? I don’t see the advantage in the Supreme Court if the appointees come from the same pool of candidates they’re coming from now. On the contrary, given the current system of patronage, it’s just an enhanced opportunity for graft. The same thing would be true at the district court level as well, and then there’s the fact that our country is overrun with laws and courts now. The solution to sepsis is not to give an injection of deadly bacteria, and I view increasing the courts in the same way.

Democrat Threats to “Burn it all Down”

Some enthusiastic Democrat candidates and supporters are threatening to “burn everything down” if the Republicans push forward with a nomination. Our country’s police force has killed, and many would say outright murdered, nearly a thousand black people this year, and the Democratic party has snoozed through this as a non-event other than a few self-righteous bleats criticizing the protestors for “rioting.” The West Coast is mostly on fire, presenting a catastrophe of unknown, but apparently huge proportion. We’re in the midst of a pandemic that has killed 200,000 people (apparently) and impoverished tens of millions of other people (definitely). None of these things has motivated the Democratic party to take any significant action at all. The idea that the Republicans doing what they are constitutionally permitted to do would result in widespread activism by the Democrats is ludicrous. It’s a fundraising event for them, and that is all.

Conclusion

The Democrats’ announced plan lacks political impact as a threat because the Republicans don’t think they are going to lose. It lacks integrity because it would at best swap one form of injustice for another. And it lacks merit because it is likely to increase the very problems it would be supposed to address. It is a bad idea. Democratic threats of civil disobedience lack any shred of credibility.

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City of Charleston, South Carolina, Sues Big Oil

As you may know, the State of Delaware has commenced a lawsuit against numerous oil manufacturers and organizations. For an analysis of that suit, see my article Fossil Fuel Litigation – Delaware vs. Big Oil. On the same day Delaware filed its suit, Charleston filed a very similar suit (it’s clear there was either collaboration or they shared a similar model – possibly a suit filed by Minnesota some time ago) in South Carolina. The suits are substantially similar, but there are a few differences as I will discuss below. Unfortunately the Charleston suit shares most of the same weaknesses as the Delaware suit.

In this article I will briefly address the Charleston complaint and its strengths and weaknesses. Then I will discuss other possible solutions to the very real harm the suits were intended to remedy.

The Charleston Claims

Charleston’s Complaint is 136 pages long and names a host of oil companies as defendants.[1] It is suing fewer defendants than Delaware is, and this is the main reason its complaint is 60 pages shorter. It alleges six different causes of action (legal claims which could independently form the basis of a lawsuit): private nuisance, public nuisance, strict liability failure to warn, negligent failure to warn, trespass, and unfair trade practices.

The public and private nuisance claims are basically the same as Delaware’s single claim under nuisance law, the difference being that Charleston’s public nuisance claim comprehends its residents’ rights as a group, while it’s private nuisance claim is intended to redress harms to Charleston’s own rights as distinguished from those of its residents. The failure to warn claims are also the same as Delaware’s claim of failure to warn, though perhaps because of South Carolina law it is divided into a strict liability claim and a negligence-based claim. The trespass claims are essentially the same as Delaware’s trespass claim.

I will address all the aforementioned claims which are essentially the same as those raised in the Delaware suit as “the common claims” and will, after addressing them generally, refer you for specific analysis of each of them to my article discussing the Delaware suit.

Charleston’s final claim is for unfair marketing. This is different than Delaware’s Consumer protection claim, but for reasons I will discuss it has similar weaknesses: the law was not designed for this situation.

The Common Claims in General

Despite the length of the complaints, both Delaware and Charleston’s lawsuits boil down to some relatively simple, though not necessarily easy to prove, propositions. To summarize in a very abbreviated form, they come down to these claims:

1. Burning oil causes global warming
2. Global warming causes damage to property
3. The oil companies knew about it and
4. Should have warned everybody about it, and
5. If they had things would be much better, but
6. Instead they hid the facts and engaged in disinformation.
7. Thus Charleston was harmed (or harmed more than they should have been).

There appears to be plenty of evidence regarding the first three bullet points as well as about the disinformation and obstruction claim. The fourth bullet, that they should have warned, seems likely to run into some first amendment issues, not because their commercial speech is necessarily completely unreachable, but because much of the speech was in the form of lobbying, which is about as protected as speech can get.

I pointed out in my comments on Delaware vs. Big Oil that one of the problems Delaware will probably have is that it fails to include the coal industry, auto manufacturers, and fossil fuel burning factories. Charleston will have that same problem (if it is a problem) compounded by the fact that it does not name ALL the oil companies either. It also carves an exception for federal lands and use, presumably because of sovereignty issues. I read somewhere this morning that the U.S. military pollutes more than 100 countries in the rest of the world; leaving them out of the suit, and leaving several big oil companies out as well, seems likely to weaken the causal relationship to the harm claimed and multiply the difficulties in quantifying the harm they do claim. The suit does allege that they can quantify it, though.

The issues regarding failure to warn and nuisance are likely to be the same for the Charleston suit as the Delaware suit. The harm sought to be remedied does not appear to be the harm addressed by those laws, when it comes to failure to warn (normally it’s the consumer who might have received the warning who brings a failure to warn claim in products liability rather than a third person who is harmed by proper use of the product). And the nuisance claim encounters at least two terrific obstacles: oil’s utility is extremely high, and EVEN NOW, long after the facts are known and even used as a campaign issue in California (for example), the policy makers are still giving oil companies the green light on exploration. Thus the argument that policy makers would have done anything different if they had only been warned rings quite hollow to these ears.

For much more on these issues, see my article on the Delaware suit.

Unfair Trade Practices

Charleston alleges, in Count VI of its complaint that:

214. As a direct result of the forgoing unfair and deceptive acts and practices, Defendants obtained profits and revenues they otherwise would not have, had they not engaged in unfair and deceptive conduct.

215. Defendants’ unfair and deceptive acts and omissions as alleged herein constitute unfair competition within the meaning of S.C. Code § 39-5-20.

216. Defendants’ acts and omissions as alleged herein are indivisible causes of the City’s injuries and damage as alleged herein….

There are no allegations that any competitive business was harmed or affected by the alleged unfair competition. There are allegations earlier in the complaint (and they are incorporated by reference, at least) that the defendants pretended to engage in attempts to promote less harmful alternatives to oil, but none that they did anything to any actual business. Thus the only harm alleged as a result of unfair competition is the environmental harm alleged elsewhere.

It is true that one of the reasons laws protect competition is that it theoretically produces safer products, but that does not typically convert third parties not engaged in either competition or consumption of the product into plaintiffs. I believe the courts will find this stretches the law too much. Additionally, without any identified competitors allegedly harmed, any harm resulting from the deception and unfair competition would be purely speculative. In legal jargon, the unfair competition claim appears to be a “make-weight claim” – a desperate attempt to add force to an otherwise troubled lawsuit. Or think of it as throwing mud against the wall and hoping some will stick – and sometimes it does, after all.

The Real Problem, the Real Solution

The real problem is that America, and through us most of the rest of the world, is addicted to oil and other fossil fuels. They make up a huge majority of our energy supply, and we are extravagant energy users. In the oil shock of the 1970s or 80s hit, it took years for Americans meaningfully to reduce their oil use. We use more energy to heat, drive, or provide electricity than any other country on a per capita basis, and we cling to our habits for all we’re worth. There is always far more talk of recycling than of conservation, though even a small reduction in energy use would produce much larger gains than recycling ever could.

Since consumption of energy is the problem, the solution is conservation.

I have no problem if people want to blame the oil companies, though, and if you want to do that, I think the right way to do it would be to create new legislation specifically linking energy companies to the emissions of their products. That would be fair, since the use of the product is causing the problem. Linking the harm to the consumption would produce benefits commensurate to the harm. Here’s the objection to that, as it will be to the oil litigation: Americans do not WANT to pay the real price of the energy they consume. They will balk at any attempt to internalize the environmental costs that have always been externalized. If they do, they’ll be making a powerful argument on behalf of the oil companies facing nuisance claims.

Alternatively, if states were to stop issuing drilling permits, this would eventually have the same impact – it would drive up the cost of oil to the point where it would, eventually, affect demand and use. But again, there’s a reason why the governor of California, while lamenting global warming, is handing out drilling permits hand over fist, and it is the same with all the states. Litigation only looks like it would be an easy solution to the global warming crisis. I don’t think it would be even if the states could win their suits. And I don’t think they will win them anyway.

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[1] You can find the complaint itself at these web addresses (it is in three parts):

https://imgweb.charlestoncounty.org/CMSOBView/Service1.asmx/StreamDocIDAsPDFWithSegment?DocID=47114557&segmentNumber=1&maxPages=50

https://imgweb.charlestoncounty.org/CMSOBView/Service1.asmx/StreamDocIDAsPDFWithSegment?DocID=47114557&segmentNumber=2&maxPages=50

https://imgweb.charlestoncounty.org/CMSOBView/Service1.asmx/StreamDocIDAsPDFWithSegment?DocID=47114557&segmentNumber=3&maxPages=50

Fossil Fuel Litigation: Delaware vs. Big Oil

The State of Delaware just filed a lawsuit against various big oil companies for their alleged malfeasance in bringing about the climate crisis. You can find the actual complaint here: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/09/2020-09-09-Final-Complaint.pdf.

Despite whatever else I may say, I’m excited about this development because it shines a spotlight on some of the strategies and tactics of giant corporations, and it brings a certain mainstream legitimacy to the thesis that what is happening in our environment today is indeed the result of human activity – and that some of that activity, at least, was legally wrong, and much of it was knowingly harmful.

Some are claiming that this is big oil’s “big tobacco moment.” About that I’m not so sure. The issues presented in the environmental litigation are significantly different, and I’m not convinced Delaware’s lawsuit has much of a chance of winning.

The Claims

It is striking that none of the claims in the 220 page Delaware complaint (“the Suit”) are based upon environmental law. Instead, they bring claims for Negligent Failure to Warn, Trespass, Nuisance, and misrepresentation under Consumer Protection law. I believe that is significant because it highlights the fact that there is not a clear legislative statement of public policy against what the oil companies have done to the environment. Instead, negligent failure to warn, trespass and nuisance are ancient common law claims not really addressing the sale of non-defective goods to willing consumers.

I will discuss what needs to be proved (the “elements” of the claims) below. The consumer claim may be more flexible, but I believe there are significant issues about whether it will apply as well. Notably absent from the claims are claims of conspiracy or corruption – given the facts pleaded, I would have expected claims under common law conspiracy and the Racketeering Influence Corrupt Organizations Act (RICO), but there are none.

The Parties

The parties in this suit, besides the state of Delaware as plaintiff, are numerous oil companies and associations. Strikingly absent from the list of defendants are a host of “unindicted coconspirators.” These include the entire automobile industry which has always worked to oppose relevant environmental regulation and, much more significantly, the coal industry and its users. Coal is a fossil fuel; it’s “dirtier” than oil and is used in notoriously “dirty” factory generators. How can you sue anybody for carbon-related environmental damage without including the coal miners, utilities, or the factories using coal? I suspect this will be a large issue.

One might, if he or she were sufficiently naïve, expect some politicians or lobbyists to be among the defendants. After all, they have played a very significant role in what has happened. Not one has been named, however, and this, I believe, points to a legal issue that will probably be fatal to at least the nuisance and failure to warn claims. And that is that our country has, with arguably fair notice of the hazards, favored the fossil fuel industry as a matter of public policy. It continues to do so.

Procedurally, when significant players who should be involved in litigation are not named in a suit, either party can bring them in by a process known as “joinder.” I expect the defendants in this case may seek to join the entities I have named. I will add this caveat, however – I have not fully analyzed either the facts or laws here, and there could be a reason of which I am not currently aware for not bringing them into the suit. I would strongly consider it, however, at a minimum, as I would want a judge to consider whether public policy destroys the plaintiff’s case and to highlight the comparative impact of coal versus oil.

We’ll see if they do.

Now to the claims.

Negligent Failure to Warn

Failure to warn is a principle of product liability based on the fact that some products, while not defective, are inherently dangerous even if used for the purpose intended in the way recommended. A car, for example, is very dangerous, and its danger comes from the factors that make it useful: it can move and carry things – thus harmful collisions obviously will occur. Where a product has such risks that are NOT obvious but are known to the manufacturer, there arises a duty to warn the consumer of those risks.

Of great significance in Delaware’s case, then, will be (1) how obvious the risk was; and (2) when did the oil industry “know” them. But there are other issues lurking: who must be warned, and how much damage must occur to be “cognizable” (considered significant by the law). And how much of the damage must be attributable to the defendant and its failure to warn. Hence the significance of all those omitted defendants. What if the amount of undisclosed damage caused by carbon emissions from oil is much less that coal has caused? To what extent should big oil have known that its role in pollution would be significant? And how do you apportion liability?

And what about those politicians? At what point did the risk become sufficiently obvious that they were on notice (ending the need for labeling)? Litigating these issues may make a lot of lawyers rich, but I don’t like the chances of winning.

The Delaware suit alleges (see, e.g., Paras 9 and 152), as it must, that the failure to warn “harmed” it, and it does so by alleging (without any real detail) that it would have minimized harm if it had only known about it, and (in much greater detail) defendants should have taken action to minimize the harm – including regulation of use and emissions. Of course the impact of these hypothetical efforts to mitigate harm is speculative from a legal standpoint and dubious from a practical one given our nation’s love affair with the auto. It also raises some very troublesome first amendment questions: to what extent is a person legally able to advocate (by lobbyists) against legislation that would be beneficial to society? To what extent must one make disclosures that might cause an increase in regulation? And to what extent is legislative “horse-trading” to prevent legislation constitutionally protected?[1]

For a fuller discussion of failure to warn: https://www.justia.com/products-liability/types-of-products-liability-claims/failure-to-warn/

Trespass

A claim of trespass is basically a claim that the defendant did something to harm the plaintiff’s property. In this case, Delaware alleges that it owns property that was harmed, among other things, by rising sea levels. It alleges the defendants caused the harm and that it was without any permission or license. (See, pp 203-5 of the Complaint).

This may be the strongest of the common law claims, but it appears vulnerable to me. First, it is in the context of product liability. It isn’t “you came onto my property and damaged it” (standard trespass); it’s “you sold somebody a product. They used it, and a byproduct of that use caused the globe to warm, which caused the sea levels to rise, which damaged my property.” Each of these things must be established as the “proximate cause” of the next thing, must be quantified and apportioned, and legally wrong (in this situation at least). Ultimately, the court would have to decide that the oil companies (and not the coal companies, for example) caused the sea level to rise by a specific number of feet causing a specific amount of damage.

That is a very tough row to hoe, though perhaps it can be done. Certainly the state won’t lack resources.

Nuisance

“Nuisance” in law has some of its lay meaning – it does refer to something obnoxious – but it requires a certain balancing act between the utility of the action challenged and the harm it causes, including the location and identity of the persons harmed. In this case, the allegations basically mirror the trespass allegations with the additional arguments that the defendants, by controlling the information available to the public (and not sharing it) caused the obnoxiousness to be worse than necessary.

That is very possibly true, but I think it requires a belief (i.e., admissible evidence) that either the public or government would have modified their actions if they had received more knowledge. And this whole “you didn’t tell me what you should have” does raise, especially in the legislative arena, significant first amendment issues. And the utility of the product – refined gasoline – is obviously very high in our economy.

Consumer Law Complaint

Count Four of the Suit is basically a consumer fraud or deceptive marketing (willful misrepresentation of facts or suppression of information amounting to deceit). There is a mountain of evidence of willful misrepresentation or suppression of facts, apparently, but here the issue is one of “harm.”

In a typical deceptive marketing claim, a plaintiff alleges the defendant sold him a product that turned out to be different than represented. This makes the product worth less to the purchaser. The harm, in other words, is measured in the value of the product sold versus the value as claimed. What is the difference in value – to the customer – of a product that harms the environment versus one that does not? I do not believe the appropriate measure of damages is the tangible (though yet unknown and unknowable) harm to the environment. It is the much more abstract question of how much that damage (to others, mind you) affects the value of the product sold to the consumer. Critically, the person harmed by consumer fraud is normally the consumer. The harm in this case is to Delaware citizens, a different category of persons. Thus it would appear that consumer law would not apply.

Delaware almost seems to alleging something, to speak metaphorically, more like this: “you told me it was a toy gun, but I pulled the trigger and a real bullet came out.” The problem as I see it with this formulation is that the bullet hit someone else beside the consumer.

Thus we cycle back to a variation of the first claim, a product liability claim. In this variation of the product liability claim (harm to third persons), there may actually be strict liability (no possible justification allowed for the harm occurring to the third person). I would suggest that Delaware should add exactly this sort of strict liability product claim, as it does not appear the complaint intends to do that. I have not looked at Delaware’s consumer law so don’t know if this would fly under that law (it does not seem to be the intention of the allegation, though). In this formulation, Delaware would not be stepping into the shoes of the consumer but those of an innocent third party citizen. It would appear the consumer legislation does not stretch that far, but product liability law surely would.

Conclusion

I am glad to see Delaware’s global warming lawsuit against the oil companies. I believe it would be strengthened by joining the coal companies (at least) and adding a strict liability products liability claim. I believe the facts pleaded support both a civil conspiracy and RICO claim, and quite possibly a criminal RICO claim. I would think the civil claims should probably be added. In any event, however, it does not appear to me that the laws used naturally apply to the wrong Delaware (and all of us) suffered. I don’t like the suit’s chances.

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[1] See Para. 162: “Instead of widely disseminating this information, reducing their pollution, and transitioning to non-polluting products, Defendants placed profits over people.  In connection with selling gasoline and other fossil fuel products to consumers in Delaware, Defendants have failed to inform or warn those consumers about the foreseeable effects of their fossil fuel products in causing and accelerating the climate crisis.” 

This seems to assume that consumers, if aware of environmental harms from greenhouse gases, would change their purchases or habits. I don’t believe that is going to be legally sustainable.

Consider the Word “Pushy”

Have you ever really thought about the word “pushy?” I called somebody that last night and really felt quite comfortable doing so. I was not intending to insult him or hurt his feelings, and we were having an ordinary conversation, so this was not about name-calling in a conflict situation. The guy is pushy, and everybody who encounters him would agree (perhaps with a very few exceptions, of course. Maybe). But it got me thinking. Where does the word come? What, exactly, does it mean? How does it compare, as a word, to “bitey,” for example? And how do you not be pushy when you want something?

“Pushy” is not actually in my (very old) dictionary, so I googled it and found that apparently it was first used in 1894. In English, that makes it a pretty new word (although about forty years older than my dictionary). To my surprise, “bitey” (“inclined to bite” but with diminuitive overtones – kittens may be bitey, but lions would be fierce) happens to be even older, but is also not in my dictionary and is considered an “informal” adjective. I guess that’s what they call “colloquial” these days? Bitey is not accepted by Scrabble, I discovered, but “pushy” obviously grew up into a more dignified word.

“Pushy” means what you think it should mean, referring to someone who presses other people to the point of discomfort, who pushes too hard to get what he wants. I wasn’t surprised to learn it was a 19^th century word, for it surely has commercial implications – the word could have been created for certain salespeople, and perhaps it was.

The problem with the guy I was talking to was certainly not motivation: quite often he is pushing other people completely for their own good, and even if he weren’t, people who go for what they want are not always unattractive. But the problem is he pushes so often that it’s impossible to relax around him. If you mention a problem, he’ll suggest a solution and then immediately expect you to put it into effect (and he’s usually eager to help, too). If you say something, he’ll say something different just to make it better. You find yourself constantly disagreeing, rejecting, saying no and explaining why.

These behaviors make it difficult for adults to relax around him, and the natural result is that they eventually start avoiding him. It’s much worse for children, though. They are taught to respect, obey, or tolerate and comply with adults. They don’t have the vocabulary or tools to deal with a pushy adult family member, and they don’t understand why they feel the way they do. Thus they avoid and withdraw. It isn’t fair to blame them for that.

So, again, what is “pushy” and how can you avoid being that? I think it is the result of being too attached to some program or agenda you have in mind. Regardless of why you want what you want, or why the other person does not want the same thing, when a person resists, it is usually pointless to continue asserting. To avoid being pushy you have to change directions and ask them what they think, or want, or would rather. You have to turn it into a conversation which is not motivated by your desire to get the other person to do something.

I think this is one of the most important things to learn as a parent, and I’m reminded of how often good parenting turns into great communication with other adults.

As a side note, nobody likely to be reading this should regard this as relating in any way to any interaction they may have had with me. There are no hidden messages in this post for anyone. It was actually my considering the word “bitey,” which I always like to hear and always enjoy the people who use it, that caused me to write this out.

General Strike and Long-term Objectives

Today, September 1, 2020, is the day set for a general strike by progressives. The strike is targeted at work, rent, and pretty much all commercial activity, although it isn’t clear to me whether it’s for one day only or whether this is the beginning of a strike that people hope will be continuous for a long time. I say “it isn’t clear to me,” but what I mean is, I have heard different messages on this question: the duration of the strike is not clear. I don’t suppose it matters, for reasons I’ll describe.

To be clear, I am in solidarity with the strike and on this day will engage in no commercial activity. Most of what I do is not supportive of the apparatus of the state anyway, though, so the impact of my involvement will be minimal, and that’s another thing I plan to discuss in this little essay.

I believe that general strikes are going to occur in the U.S. as part of a larger pattern of protest. I expect them to be sporadic and sparse and to create little effect at first. I expect them to grow and have more impact over time, and I do believe they should. I think they will cause collateral damage and that that is unfortunate but necessary. As an independent business person, I expect to come in for some of that collateral damage.

All these things seem natural and inevitable to be, but I will say that I intend to limit the amount of collateral damage – damage to people or entities I don’t think deserve to be harmed – as much as possible for as long as possible. And of course I will try to reduce the harm that occurs to me.

I have some doubts as to the efficacy of general strikes in our current economy and society. They are awfully unwieldy and unmanageable, and there are so many different viewpoints out there that securing any sort of unanimous action is going to be a large task. In any event it will surely take time. Thus the amount of time hoped for for this strike hardly matters. It’ll be here and gone, probably – but others will follow.

It seems to me that we should at all times be looking to create and support alternatives: businesses and arrangements that create good and don’t cause harm. For example, if I normally shop at a business that does good things and competes with one that does not, why should I refrain from shopping there? Doing so would hurt a good business and may even be giving its evil competitor an advantage. There may be times when that’s necessary, but that time will be brief, and it is not now. I do not intend to withhold my support from businesses or people I think should have it in the name of a general strike.

As it happens, I have created my life around ethical principles. I do, indeed, look at the character of the places I shop before I spend any money there, and there are not many instances in my daily life where I haven’t found an acceptable alternative. Banking would be one of these, but the crypto currencies have largely solved that problem and are getting better all the time. Our ultimate goal is to create a new system; in many ways my life already has that.

There are many ways it doesn’t, though. For example this blog. It’s posted on WordPress and linked on Twitter. I used a computer and electricity in writing, uploading and reading the article, and I used all those things and more as part of the internet, and which, if any, of the providers would be ethical in my view I have no idea. Very possibly not any of them. Some things can only be reached by collective action, and I’m for it.

I don’t know whether my readers have been able to create a morally acceptable network of services in your lives. If you haven’t, I think you should. In a capitalist society, money talks, and when you buy something you increase the chances that it will be made or done again. If you’re a part of the general strikes, I just hope you won’t forget who your friends are. Support them. Having more of them is what we really want, after all.

Work is more complicated, isn’t it? But again I apply the same principles. If your work is opposed to the interests of the 1%, and your workplace is similarly opposed to those interests, why should you refrain from working during a general strike targeted at those interests? But what if your work does not oppose those interests, but the business does? Or vice versa? Just from an ethical viewpoint it gets hard to figure, doesn’t it? I considered this question carefully in the work I’ve chosen to do and feel no duty to refrain from working as part of a general strike. If that is possible for you, I can recommend it. If not, you’re facing the difficult choice confronted by strikes everywhere: do you give up temporary advantage for some long-term, greater benefit? The stakes are very high.

What about rent?

There are currently about 30 million people facing eminent eviction. For some the process is under way. For others, there may be delays. I believe that if you are not already being evicted, causing that by striking might not be a good idea. It can wait, in other words, till everybody is doing it. That might flood the courts and make it impossible to evict anybody.

The reason it takes general strikes so long to get rolling is that the early adopters can get crushed. I just say make you own decision. It will get safer even if it never actually becomes totally safe.