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July 22, 2004

Vindication! And the start of the home stretch.

By Michael Krauss

Wally, thanks for your agreement with about 90% of what I advocated in my earlier postings. In an effort to keep this dialogue interesting for readers, I won't go over those areas any more, and except for one important detail I will focus on two issues in this posting: 1) the rather narrow questions that still come between us; and 2) an introduction of that elephant in the room, the Second Amendment.

First the important detail. We agree on the constitutionality and appropriateness of federal choice of law rules for product liability (and in fact I'm pleased to note that I met with a member of the House of Representatives last week on this very subject, so the proposal may soon get some "traction", as we say inside the nefarious Beltway). But Congress is not the only route here. I believe that if the plaintiffs' bar forestalls such a development, the Supreme Court itself has the constitutional authority to impose choice of law rules unilaterally, under proper notions of judicial restraint, precisely in obeisance to the Full Faith and Credit Clause as well as other Constitutional provisions. Doug Laycock of the University of Texas has defended this proposition in an erudite piece, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law [92 Columbia L. Rev. 249 (1992)]. As has been pointed out by Laycock, three fundamental principles demand Court action (in the absence of Congressional action) while circumscribing the exercise of legitimate federal authority over choice of law:

1. The principle of equal American citizens. Each state must, as a general matter, treat citizens of sister states on an equal basis with its own citizens. This implies that states may not adopt or exploit choice-of-law rules in order to favor local citizens over citizens of sister states. Yet in practice many states' choice of law rules have contributed to violations of this principle.

2. The principle that states are territorial. The allocation of sovereignty among states is territorial. This fundamental principle is essentially assumed by the Constitution. State constitutions and acts of admission to the Union do make the territorial basis for state sovereignty explicit. The implication of the territoriality principle is that a state’s claim to regulate behavior or to govern a dispute must be based on issues related to its territory. A state’s “interest” in extending the territorial reach of its own law to the entire country, for the purpose of subsidizing its citizens by consumers throughout the nation, is not sufficient to legitimize a state rule under this principle. Federal choice-of-law rules must take the territorial principle into account, refusing to select laws on grounds unrelated to the basis of state sovereignty.

3. The principle of republicanism. Choice-of-law rules should, ideally, encourage (or, at the very least, not discourage) civic participation in determination of policy. Confining the major effects of a state’s rules within its boundaries strongly encourages citizens to modify rules they find unsuitable and to defend those of which they approve. Republicanism also implies relatively convenient access to knowledge of laws and to lawmakers. If the costs of a New York law are borne by all Virginians (who have neither easy access to New York law nor political standing to modify it), the republican principle would not be satisfied.

I note in closing on this point that the Supremes have, this past term, prevented states from adjudging punitive damages in tort based on behavior in other states [Campbell v State Farm Insurance]. Your posting earlier today recommended Congressional action to enshrine this, and I'm not opposed – but just as the absence of legislation did not preclude Court intervention to preserve tort from excessive state punitives, so the Court can preserve tort from excessive state choice-of-law.

OK, now let me defend myself against the two remaining criticisms you have, Wally.

1. Diversity and choice-of-law changes are not panaceas, True enough. But they do go a long way. In the Loewen case (thanks for the praise for my article), for example, diversity changes would have allowed the defendant to have his case heard in federal court, sans the elected Jackson state judge and his incredible evidentiary rulings.

2. I'm taking the crust and the filling from the states, but leaving them the pie. Here I respectfully but forcefully demur. Removal for reasons of diversity is optional, not mandatory. If a state's legal process is fair, parties will agree to state proceedings – they can often be much cheaper and faster than federal cases. And state tort law is preserved under my proposal. If New Jersey citizens are more risk-averse than, say, their Virginia brethren (and there is no reason to believe that risk preferences are identical across the country), they will approve of and be willing to pay the price for their legal policies, which will be faithfully applied to New Jersey products by state and federal courts alike. No emasculation of states' rights here at all – rather, respect for the three constitutional foundations of states' rights enumerated above.

Last but not least, a few words on gun ownership and gunshot injuries. This as a way of introducing the Second Amendment discussion, which I hope will take place in our last go-round tomorrow.

As a general rule, the making and the selling of guns are neither moral nor legal causes of crime. In truth, the general use of firearms does not contribute to harm at all. If causality is sought, firearm ownership is linked to security, not to death. Guns are used defensively (merely brandished to prevent assault, rape or robbery) approximately 2.5 million times per year -- far greater than the number of firearms crimes. Robust empirical data indicate that laws permitting the carrying of concealed handguns reduce murder by about 8.5 percent and rape by about 5 percent. [Lott, John & Mustard, David (1997), Crime, Deterrence, and Right-to-Carry Concealed Handguns, Journal of Legal Studies 26:1] Those benefits are real and substantial.

Gun ownership facilitates self-defense by allowing physically weak persons to confront stronger aggressors. The “equalizer effect” has historically been associated with increased security and liberty, and was explicitly recognized as doing so by defenders of constitutionalism in both England and the United States. Ownership of a firearm, in and of itself, is best seen as insurance against lawless aggression by individuals [Wheeler, Samuel (1999) Arms as Insurance, Public Affairs Quarterly 13(2): 111], or (in the Founding Founders’ eyes, and in the eyes of the 2nd Amendment to our Constitution) by government. [Malcolm, Joyce, (1994) To Keep and Bear Arms: The Origins of an Anglo-American Right, Cambridge, Harvard U. Press]

Guns are not primarily owned by criminals. Firearm ownership, for example, is most common between the ages of forty-five and sixty-five, while arrest rates for violent crime peak between the ages of fifteen and twenty and decline rapidly after age twenty-five. [On firearm ownership see National Health Interview Survey, 1994 Supplementary Series on firearm usage and on arrest rates by age see the Statistical Abstract of the United States, 1997.] This is yet another nail in the coffin of the cities’ proximate causation tort argument.

Although 80 million American families own about 240 milllion guns, only about 40 children die each year from accidental discharge of guns. That’s right, 40 per year. In 1998, the last year for which we have hard data, the number was 47: of which only 17 were killed by a handgun. The others were killed with their dad’s rifle, or some other long gun. President Clinton once reported a much higher number of minors killed by guns, but it turned out that that number included an overwhelming majority of 15-19 year olds killed in gang wars – not the accidental killing of “children”. There are on average FOUR cases per year where a child shoots another child accidentally. That compares, for example, to 150 children who die each year from fires started with cigarette lighters.

The Centers for Disease Control reported in April 2002 that, for the 11th year in a row, fewer Americans are being killed or injured in gun-related accidents. The death rate declined 26 percent between 1993 and 1998, and is now at its lowest point since 1965, despite a huge increase in the number of firearms owned by Americans since then.

Notwithstanding all this data, the press gave extraordinary publicity to a 1993 article by one Arthur Kellerman in the New England Journal of Medicine. Kellerman's "study" concluded that the presence of a gun in one’s home dramatically increased one’s chances of being killed by gunfire. As has since been widely noted, though, the study had stupendous methodological flaws that would surely have precluded its publication, were the NEJM not blinded by its fear and loathing of guns.

The study consisted of going to homes where a homicide occurred, and asking whether there was a gun in the house. Such a study by design and definition excluded successful uses of the gun (i.e., where the attacker is scared off and no one is killed). Even if the homicide victim was someone who did not live in the house, and who was stabbed to death, the answer “yes” to the question, “Was there a gun in the house?”, would increase the correlation between guns and homicide.

Moreover, the fear of being killed by a stalker or a gang might well contribute to one’s decision to purchase a firearm. If the fear is well-founded, then we would expect gun purchasers to be more likely victims of murder than others. But that does not establish that the firearm ownership caused the crime. Analogously to Kellerman’s dishonest methodology, I could “prove” that visiting a hospital correlates with dying. This does not show that the hospital visit caused the fatal illness.

Gun ownership is on a steady increase. Crime is on a steady decrease. It turns out, over time, that there is no link between the extent of gun ownership and the extent of violent crime. None at all. Violent crime is much more likely to be associated with demographic factors (for example, the size of the 15-25 male age cohort) and socio-cultural factors (for example, the presence of conscription as an outlet for male aggression, the severity and certainty of punishment for violent crime) than with gun ownership patterns.


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