Sue the government and the voters: They are the ones strictly liable

Strict liability is one of those nasty things which activist jurists such as Benjamin Cardozo and Roger Traynor had championed during their careers. That being said, this piece isn’t about discussing my criticisms of this abhorrent outcome of the Normative Jurisprudence practiced and advocated by the aforementioned. Rather, it’s about using such outcomes against those who hold such prospects as organic to modern law – especially those, such as Traynor, who hold the view that “the increased presence of government in American life was a necessary and beneficial phenomenon”.

So if that’s not what the piece is about, then what is it? It’s quite simple: It’s about holding the government strictly liable for loss of liberties and damages due to their restrictions they have employed upon the populace. Before reading further, make sure you understand the concept of strict liability (read the link at the beginning).

For example, let’s use a fictitious (or in reality, not quite fictitious) scenario. In this scenario, John and Jane Doe are driving through Chicago on their way to visit a friend. Well unfortunately, they take a wrong turn and end up driving through a… shady part of town. While they are at a stop light, a carjacker pulls John out of the car and then shoots Jane. John normally would have been able to stop him, however he left his carry piece back in Michigan because of Cook County’s draconian (and unconstitutional) firearms laws. As a result, John has to suffer the loss of his wife for the rest of his life.

In this scenario, Chicago’s gun control laws lead to the death of Jane Doe and the suffering of John. It would logically follow that the government in this case is strictly liable for this outcome (the gun laws prevented John from defending himself and his wife). However, the buck shouldn’t stop the government. After all, strict liability, when applied to the context of product liability, applies to all parties engaged in the stream of commerce. What does that mean? You guessed it – let’s go after the voters that brought in the government which enacted those regulations and ordinances which resulted in the Doe family’s losses and suffering as well!

Obviously, one of the counters that could be brought against my example here is that John Doe should have still brought his carry weapon, and then used an affirmative defense such as self defense when (it’s Chicago – I seriously doubt it would be an “if”) he is charged for violating Chicago’s gun laws. Well, theoretically that could be correct. However, the reality is that it doesn’t always work. Take for instance the case of Hale DeMar. He shot in self defense, yet still received a fine of $750 for violating the handgun ban Wilmette (which also happens to be in Cook County) had in place. Of course they later dropped it because they say they didn’t want to re-victimize him. Yeah, ok.

There is also another issue with the above proposition. What if John didn’t have to use his firearm in self defense, but rather, ended up getting pulled over and searched because the cop that pulled him over decided he’d like to help out the CAGE Team? Certainly not going to be able to use an affirmative defense there.

Concerns with my example aside, there of course are going to be those that scoff at my claim that the government and voters should be held strictly liable for the negative outcomes of their legislation and regulation. To those people, I have two questions:

  1. Do you believe that the citizenry should just accept the negative consequences associated with the “increased presence of government in American life” and not be able to recover for associated damages? Especially on the basis that the government should do whatever it takes to make things better overall?
  2. Do you believe that governments, their agents, and those who voted them in should be treated differently than corporate entities in regards to tortious claims?

If you answered yes to the first question, you probably (in fact, logically, you would have had to have) answered yes to question two. If you answered yes to the second part of the first question, you have the mentality of a statist, if not one already. If you answered yes to the second question, then you maintain a Jurisprudential double-standard in regards to the defending parties, something which should be very disturbing to those taking notice. All of these things should raise concern to those to might take notice.

As much as it would feel appropriate to call people like Traynor, and his ilk (this would include the legislators and executives as well) fools or idiots for pimping strict liability and increased government involvement, it wouldn’t be appropriate. A fool or idiot certainly wouldn’t be sitting in high level positions. However, it certainly would be appropriate to state that such jurists, legislators, and executives are unqualified to hold their respective positions. That’s why as long as these people have power, their own contrivances should be used against them.

2 comments for “Sue the government and the voters: They are the ones strictly liable

  1. December 1, 2008 at 9:34 am

    One note, when you hold the “government” responsible you hold the voters responsible by default.

    I’ve got to think there’s some sort of settled law somewhere that eliminates the right of citizens to seek monetary damages that result from the imposition of enacted laws, though.


  2. December 1, 2008 at 10:47 am

    Nick: Well, not really an issue of settled law, but rather Sovereign Immunity, which has it’s roots in Common law.

    But the thing is, there are people like Traynor who want to totally play with the legal system, so I would have no problem returning the favor.

Comments are closed.

Loading Facebook Comments ...