In Texas, Bad Law and Worse Politics is Symptomatic of the Unhealthy State of Our Polity

Birch Smith

Birch studied philosophy and history at Hillsdale College before working as a teacher of history, government and economics. He is now embarking on graduate study at George Mason University, pursuing a Master of Arts in International Security. His non-academic interests include cooking, hiking, football ( or ‘soccer’ for those uninitiated in the beautiful game), and apparently changing cities as often as possible. Black coffee or a peaty scotch, always. You can find him on Twitter

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71 Responses

  1. The fact that SCOTUS let this go into effect shows that the Court need to be packed good and hard.Report

  2. greginak says:

    It’s hard to figure if there is some actual larger strategy to this bill or just the result of epic hubris and ideological blindness. The bounty BS is so fraught with danger and likely to lead a handful of obvious problems. I’m not even talking about other states trying to do the same thing, just the bounty system is a raging dumpster fire of a law.

    Just to maintain my sterling reputation for …ummm….i don’t know….liking spicy foods or something, let me note that if the “left” did this it would equally as terrible an idea. But we got Stop the Steal ( and give me money) and Devin Nunes douchbaggery lets note play with any bsdi here.Report

    • Michael Cain in reply to greginak says:

      The bounty BS is so fraught with danger and likely to lead a handful of obvious problems.

      IIRC, Mississippi has been working itself into a serious OB-GYN shortage by making it more likely the docs will get tripped up by abortion restrictions regardless of intent. The Texas law, with only a narrow allowance for health of the mother considerations, seems likely to discourage OB-GYN practice generally.Report

      • The Texas law explicitly allows ending an ectopic pregnancy, but it isn’t at all clear whether doctors who do that are OK or can be sued and forced to defend themselves. We do know that whoever files the suit won’t have to pay the doctor’s court costs.Report

    • InMD in reply to greginak says:

      Certainly seems hard to think of anything nearly as nihilistic.Report

    • LeeEsq in reply to greginak says:

      None of the Republican outfits like the Federalist are really. celebrating the Texas law. This suggestions that they know this is not going to be great for them politically. It might not hurt but it isn’t going to help. So it looks like epic hubris and ideological blindness are driving these laws.Report

      • Jaybird in reply to LeeEsq says:

        Lee, that’s an insightful comment.

        If I were to disagree with it at all, it’d only be to say that the culture war seems to have a *LOT* of weird dynamics right now. Like everybody is tuckered.Report

      • Philip H in reply to LeeEsq says:

        The lawyers at the Federalist all know the clean overturn of Roe is the forthcoming Mississippi case. This buggers that right up, especially since it will give other states cover (or so those states think) to make an end run around SCOTUS and Roe. Essentially Texas managed to make all the Federalists hard work stacking the judiciary moot.Report

      • Pinky in reply to LeeEsq says:

        A better explanation is the sense that this isn’t a great law, lacks a good enforcement mechanism, and might not stand legal scrutiny. One might also be suspicious that the left is overstating the importance of this bill for their political purposes.Report

    • Saul Degraw in reply to greginak says:

      A bit of column A and a bit of column B. Texas wanted to get around the Ex Parte Young problem where you have a clear target to sue and enjoin a law. It is also meant to create an atmosphere of perpetual intimidation.Report

  3. PD Shaw says:

    Congress has the power under the Fourteenth Amendment to abrogate state sovereign immunity to suit in federal court. I’m not sure that solves all of the practical issues, but it would be a first step.Report

    • Philip h in reply to PD Shaw says:

      Congress would have to act. And they are bad at acting in things others box them in to.Report

      • PD Shaw in reply to Philip h says:

        I doubt that Congress will act in the face of a specific event, though it did abrogate state sovereign immunity in the face of lawsuit alleging state infringement of intellectual property rights. But in terms of how this system is supposed to work, Congress has a lot of power in terms of enforcing the 14th Amendment. They are asleep at the wheel, assuming the courts will take care of court business.Report

  4. Marchmaine says:

    Good post; I agree. ‘Vexatious’ weaponizing of the culture wars is not the path forward.Report

    • Dark Matter in reply to DensityDuck says:

      This structure was the left’s idea?
      That’s amusing.Report

      • DavidTC in reply to Dark Matter says:

        People who have been harmed by gun violence have, in fact, been harmed. By a gun. Made by a company. And people already have the right to make those sort of lawsuits in a general sense. If a car manufacturer sells a car that slips out of gear, rolls down a hill, and runs over you, you can sue the car company for selling someone else a defective product that harmed you.

        The only reason you can’t sue gun manufacturers is that they have been explicitly excluded from any sort of lawsuits like that. By a law, passed by Congess. They’re the only industry like that.

        Biden saying ‘We should stop putting gun manufacturers under this special law that prohibits certain lawsuits against them,and instead treat the same as literally any other manufacturer’ is not the same as ‘We should create some sort of weird bounty system where people can sue others for something that isn’t any sort of harm against them’.

        As for what Biden suggests: Yes, this would sorta be uniquely devastating to gun manufacturers’ bottom line, but that’s because they, unlike literally everyone else who sells goods, (even dangerous goods), they deliberately promote their use for harming and killing people!

        There’s a reason the alcohol industry says ‘Please drink responsibly’ and they don’t show wild drunken behavior in ads, because there is, indeed, a risk of a lawsuit there if some kid drinks too much and dies or runs someone over. Alcohol companies can _currently_ show up in court and ‘Look, this person misused our product, that is not our fault. We have tell people to drink in moderation, we promote anti-drunk-driving things, we have laid how we want people to use our products, and they were misused in this case’.

        Do they really care? No, obviously not. But they have a foundation that lets them claim to care in court. The alcohol industry do not want to lose lawsuits, so they present a very specific image of booze consumption to the public, one carefully run past lawyers.

        So, if gun companies could be sued, their lawyers would, at minimum, require the companies to start taking _some_ sort of action to show ‘We do not want people harmed by our products’…and would certainly make them stop promoting products with ‘The world is dangerous, buy our stuff in case you want to shoot dangerous people’. Because that is a flagrantly irresponsibly way to promote any sort of product! And the courts would agree.

        But they won’t ever end up in court for it. Because they paid for a law just for them.

        …in fact, if anyone wants to reduce this culture war nonsense, requiring gun companies to _be responsible for their own advertising behavior_ in a court of law, like literally anyone else in this country, would go a long way. No other industry is allowed to act like they do…if the car industry ran around promoting ‘Run over people who threaten you’ as part of some vast cultural war, running ads of people driving over cardboard cutouts, etc, they’d get instantly sued into the ground the first time someone deliberately ran over someone with one of their cars.

        No, this isn’t a first amendment issue. It really isn’t. If I run around urging people to harm others, and selling them things to do it with, and they do harm others using those things, I really can get sued over it! Not the speech, but the harm itself…and then my speech would be used to show that I was selling a product _intended_ to do that, thus meaning the harm was my fault to some extent.Report

        • DavidTC in reply to DavidTC says:

          Actually, let me be a bit clearer here with an example:

          Let’s say a gun company runs an ad, showing a homeowner hearing someone in their house, grabbing a gun, creeping downstairs, find the trespasser, who is holding a gun, and shoot them.

          Let’s say someone buys that gun, and does exactly that. In fact, they manage to get it exactly correct. The trespasser was even armed! Castle Doctrine, right?

          Unfortunately, this happened in Maine. Or Colorado. Or many other states. Those states have a castle doctrine, but like a lot of castle doctrine, that isn’t _actually_ how it works. Under a lot of those laws, to have the right to use deadly force against someone in your house, they have to either be threatening deadly force against someone _or_ committing a crime. (To clarify, that’s a different crime than their current trespassing. Sometimes it has a be a serious crime…Colorado law explicitly calls out arson.)

          So you can, possibly, shoot someone if they are trying to carry off your TV, but you cannot shoot someone simply because they have broken, armed, into your house. Seriously, you legally cannot do that. I know it doesn’t sound correct, (Mostly because the gun industry pretends it isn’t the law!) but that is the law in a lot of the US.

          Now, you’re about to say ‘They wouldn’t prosecute someone for that’, and you’re probably right. I’m sure they don’t.

          But we’re not talking about that. We’re talking about a universe where you can sue gun manufacturers and gun sellers.

          Guess who just sold someone a product and urged them to commit a wrongful death with it? Guess who is going to get a _huge_ lawsuit against them?

          And that hypothetical is entirely about someone correctly following the (incorrect) ‘rules’ laid out by the gun industry.

          But…even if the gun industry stops saying ‘Do this illegal stuff with our guns’, that’s not really enough. The alcohol industry doesn’t just not loudly say ‘Drink and drive’, they actually tell people not to do that.

          The gun industry, to be safe, would have to be saying things like: ‘Be sure the person you think is threatening you actually is, and you aren’t operating off racial prejudices or misunderstandings. And show some restraint, see if there are any other options. You have a duty to retreat in most places, etc, etc, etc’

          And when I say it like that, you really start understanding the sort of trouble they would be in with their _current_ ads.

          It’s like if the alcohol industry showed people speeding down the highway, with the driver guzzling gin and people drunkenly hanging out the windows. I kinda think they’d get sued the next time someone died doing that.

          Again, not for the ads. Any company has a right to whatever speech they want. And the people have the right to sue them for the harm that speech causes, and more importantly, the harm their product did when combined with the ad and general customer understanding of how the product should be used. Whether explicit, or somewhat implicit.

          …or, rather, people have right to sue the alcohol industry for that. Because _they_ didn’t pay for a law exempting them from lawsuits.Report

          • DensityDuck in reply to DavidTC says:

            “the people have the right to sue them for the harm that speech causes…”

            uhhhhhhhhhhhhh maybe you wanna rethink where you’re going with this one, bro

            just

            like

            sit back and think about the OP and think about what you just wrote there and think about how those two might come togetherReport

            • DavidTC in reply to DensityDuck says:

              “the people have the right to sue them for the harm that speech causes…”

              Pssst: People sue for harmful speech all the time.

              And I don’t mean just in the extremely obvious libel and slander situations, where the speech causes direct reputational harm.

              For more indirect example, a huge amount of lawsuits are over professionals that give advice, be it legal or financial or engineering, and their advice was bad to the level that they should have known it was bad. And thus they get sued over the fact their client followed that advice, and Bad Things happened.

              If I screw up my taxes myself, that’s my fault. If I pay a profession to advise me about my taxes, and they give me advice that causes me to screw them up, that’s their fault. Even if I’m the person who signs off them.

              And most consumer safety lawsuits are not over inherently dangerous products, but over products that purchasers were told to use in an unsafe manner. Or even _not_ told to _not_ use in a manner that was unsafe.

              Yes, yes, it’s easy to laugh at ‘Do not stick fork in eyes’ dumbass warning labels, because we assume people know that. It’s a lot less funny when the lawsuit is ‘This product did not say it ammonia and thus should not be used on a floor with bleach on it, and I did, and now I have permanent lung damage’.

              That’s a lawsuit over speech. Or, not even that…it’s a lawsuit over the _lack_ of speech, the lack of a warning. Aka, it’s the government ‘compelling speech’, something that supposedly the government can never do via a law.

              And it’s not there. Because that’s not how civil lawsuits work. Civil lawsuits are about harm, not about laws, and speech (or even lack thereof) can be harmful, especially when combined with something else. Laws just change the rules about harm.

              The Texas law changes those rules in completely nonsensical way. A way that really doesn’t have anything to do with speech, so I don’t know what point you’re trying to get to.

              It is possible to argue that abortions _can_ cause harm to certain people…I actually think there have been some laws under that theory, where the _father_ could sue? And there’s also been the weird theory of trying to sue under as if you were the embryo, which…um, the problem there is that…the parents would clearly be in charge of the embryo’s estate, so…what?

              But that’s not the Texas law, which actually _outlaws_ abortion in a general sense, and gives enforcement of that law to private citizens in ways that don’t really work under civil law at all.Report

          • Dark Matter in reply to DavidTC says:

            Let’s say a gun company runs an ad, showing a homeowner hearing someone in their house, grabbing a gun…

            Can you point to actual ads from gun manufacturers saying people should buy their products to commit crimes? “Defending yourself in a life-threatening situation” is not normally considered to be a “crime”, even if the person threatening you is in a protected class.

            If you can’t point to actual ads, then in your thought experiment a company is committing a crime, and then after much thinking we find out what you assumed at the beginning.

            In real life, all of the firearm ads I’ve seen have been for shooting deer or for target practice.Report

            • DavidTC in reply to Dark Matter says:

              Can you point to actual ads from gun manufacturers saying people should buy their products to commit crimes? “Defending yourself in a life-threatening situation” is not normally considered to be a “crime”, even if the person threatening you is in a protected class.

              You basically just said ‘I have internalized what gun manufacturers have said to the extent that I have ignored the fact that DavidTC pointed out the sequence of events that they were showing gun owners use their products for was literally criminal’.

              What I just described is, again, actually criminal. Under the law. You can’t just pretend it’s _not_ because you have been subject to a PR campaign it is not. Your idea it’s not is…really just proving my point!

              And…you want an ad like that? Here: https://www.youtube.com/watch?v=f5zNz0n7efk

              Now, that one claims that Obama outlawed what happened, with the implication that it is otherwise legal, (Which it wouldn’t have been, both because of what I said and because they were lying about it) and was otherwise legal in other places, presumably.

              Which it is not. In fact, that ad has a _very good_ example of illegality, because that’s a real example: In that, the (male) homeowner went downstairs and started shooting at the intruder, aka, exactly the sort of thing I pointed out was actually often illegal!

              The point is that gun manufacturers (By which I mean ‘the NRA’, because that’s who they are.) have been telling the general public a narrative of what is legal and what isn’t for decades, and it often is completely wrong…and certainly widely varies between states.

              This is astonishingly irresponsible for any industry. They have been telling people, in various states, to commit a criminal tort with their products. That such a thing is legally allowed. And they don’t bother to have any caveats or disclaimers or _anything_. (In fact, as I’ve pointed out before, they don’t even bother to help their customers keep track of which of their guns are legal where.)

              And also, on top of the illegal things, they show extremely irresponsible things. They post things like pictures of people not holding guns responsibly, for example.

              The firearm industry is, frankly, astonishing from a lawsuit capacity, or would be if it could happen. Their behavior would be the death-knoll for literally any other industry. But they have no legal liability because they have a special carve-out under the law.

              And in fact, that carve-out proves my point: No other industry needs such a blanket carve-out, not even industries that sell extremely dangerous things, because none of those industries tell people to behave in rather absurd and dangerous ways with those products! Indeed, those industries are like ‘Please use this extremely dangerous product in exactly the documented manner, which we have run past our lawyers and engineers to keep us from being sued…um, we mean, to keep you from being hurt.’.

              Meanwhile, the NRA is just waving around guns and talking about how you might need to use them because of people who don’t like Trump, for another NRA ad.Report

              • Dark Matter in reply to DavidTC says:

                What I just described is, again, actually criminal. Under the law. You can’t just pretend it’s _not_… And…you want an ad like that? Here: https://www.youtube.com/watch?v=f5zNz0n7efk

                You’re pointing to an anti-Obama election ad (as opposed to a gun-sales ad), which has exceptionally deep and wide 1st AM protection. It presumably was created by the NRA, which is not a manufacturer, which means you’re also holding one group responsible for other groups’ actions (sounds like the Texas law btw).

                I am not a lawyer but imho ads suggesting gun rights are a good thing are legal on the face of it, doubly so in the context of an election. For that matter it was even legal for Obama to tell his followers to bring guns to knife fights and/or elections.

                Now if you’re right then you can and should get lots of people arrested. I’d suggest starting with Obama.Report

            • DensityDuck in reply to Dark Matter says:

              “Can you point to actual ads from gun manufacturers saying people should buy their products to commit crimes?”

              He’s saying that in the weird circumstance where someone actually did this then they’d totally get away with it because Merkins are just a bunch of gun-fellaters who totally passed laws saying you can’t ever criticize gun makers for anything ever.Report

              • Dark Matter in reply to DensityDuck says:

                who totally passed laws saying you can’t ever criticize gun makers for anything ever.

                The laws don’t say you can’t criticize gun makers, the law says you can’t claim tire makers are involved in drunk driving unless the tire blows up.

                So the normal laws and normal logic applies, and we can assume everyone knows guns can kill people (that’s it’s purpose) so putting warning labels on the guns is pointless.

                That the law was needed says more about the anti-gun movement and our legal system than anything else.Report

        • DensityDuck in reply to DavidTC says:

          “[T]hey won’t ever end up in court for it. Because they paid for a law just for them.”

          oh look

          here’s another one of those things

          where I say “liberals often do a thing”

          and you come in suuuuuuuper mad

          and

          do

          the

          thing

          like

          typing fifteen hundreds words into the comment box is not actually not being foolish in the manner I described, it just seems more like you know exactly what you’re doing but believe that if you bury people with logorrhea then that makes it okay, somehowReport

      • Do you see Biden saying people with no demonstrable harm can sue and have immunity from filing frivolos lawsuits? If so, please point that out.

        The only precedent for that is Devin Nunes.Report

        • Dark Matter in reply to Mike Schilling says:

          Do you see Biden saying people with no demonstrable harm can sue and have immunity from filing frivolos lawsuits?

          Yeah, I do. Biden was suggesting the equiv of everyone who is injured by drunk drivers being allowed to sue the car-tire manufacturers. Without tires there are no cars and without cars there is no drunk driving, ergo it’s clearly their fault for existing and not making sure their products aren’t used to injure people.

          The Left doesn’t want private ownership of guns. Ergo anything which destroys gun manufacturers is a good thing no matter what kind of ethical or legal twisting needs to happen. The Right’s mirror of this would be abortion.

          The law which prevents gun manufacturers from facing frivolous lawsuits should be matched by a similar law protecting abortion providers and abortion enablers.

          The usual illegal things will still be illegal; If you buy a gun and it blows up in your hand because of manufacturing defects then you can sue them, ditto if you have an abortion and the doctor carves his initials on your internal organs. Giving/Selling a gun to person X so he can kill person Y is a criminal conspiracy.Report

          • Chip Daniels in reply to Dark Matter says:

            Victims of drunk drivers can in some cases sue the bar that provided the alcohol.Report

            • Dark Matter in reply to Chip Daniels says:

              Victims of drunk drivers can in some cases sue the bar that provided the alcohol.

              But not the builders of the bar, nor the manufacturers of the alcohol, much less the makers of the car and the car’s tires.

              Going after gun manufacturers for gun crimes ignores multiple middlemen and takes us to “because they exist” territory.Report

              • DavidTC in reply to Dark Matter says:

                But not the builders of the bar, nor the manufacturers of the alcohol, much less the makers of the car and the car’s tires

                Why do you think these blanket protections against suing gun manfuacturers against any intentional use of their product exists if you are so sure no one could sue over it?

                It’s because everyone was suing them.

                And, um, quite a lot of people have sued alcohol manufacturors for how they have promoted the use of alcohol. Which the plaintiffs have mostly lost, because, agains, alcohol producers have built up a framework of legal defense that allows them to say ‘We do not intend for our product to be used this way, and in fact are trying to stop it’. In fact, some of these cases are sorta the _reason_ they changed their marketing to downplay ‘crazy party’ aspects, and won’t show cars in their ads, or air them during certain TV shows that appeal to teens, and have anti-addiction messages, etc, etc. Not because they actually care about that, I kinda doubt that. But because they want to be able to say in court ‘We are not responsible for the misuse of our dangerous product. We are trying as best we can to stop it. Here is all the evidence of that fact.’.

                All dangerous-product industries except gun manufacturers do this, making very specific cautionary statements about how their products should be used, and how they shouldn’t.

                Gun manufacturers just Yosemite Sam into the air.Report

              • DensityDuck in reply to DavidTC says:

                “Why do you think these blanket protections against suing gun manfuacturers against any intentional use of their product exists if you are so sure no one could sue over it?

                It’s because everyone was suing them.”

                there are also blanket liability protections for airplane manufacturers and i don’t see anyone suggesting this is because politically-connected airplane manufacturers have manipulated the government into giving them official protection despite the highly-dangerous nature of their productsReport

              • Dark Matter in reply to DensityDuck says:

                there are also blanket liability protections for airplane manufacturers…

                And for vaccine manufacturers. Widely used but unpopular/controversial products attract predatory/frivolous lawsuits.Report

              • DavidTC in reply to DensityDuck says:

                there are also blanket liability protections for airplane manufacturers

                No there aren’t. You’re talking about the General Aviation Revitalization Act. And calling that a ‘blanket liability protection’ is absurd. The liability protection only applies in a very specific circumstances. It is only for small planes, and only for ones that are 18 years or older.

                And, hilariously relevant to this discussion: It only applies to people in the plane! Aka, people who have voluntarily gotten into an old aircraft.

                It doesn’t restrict lawsuits by people who are not users of the plane, but get harmed by a plane. (Like something falls off and kills them.)

                You know, the exact situation we’re talking about with guns.

                Saying ‘Companies should not be liable for [mechanical thing] they produced forever. At some point, owners of older [mechanical thing] have to accept that they will fail if they keep using them’ is an entirely reasonable law, especially when such product needs constant repairs.

                And it’s not the same as saying ‘Companies should not be liable for any use of [mechanical thing] they sell, including it harming random third parties who had no choice to be involved’.Report

              • DensityDuck in reply to DavidTC says:

                “The liability protection only applies in a very specific circumstances. It is only for small planes, and only for ones that are 18 years or older.”

                welp

                the average age of general-aviation aircraft is fifty years

                so maybe that “eighteen years” isn’t doing as much lifting as you imagine

                also “it’s only for small planes” those are not exactly obscure items that only a few specialists operate, bro, there are hundreds of thousands of them in the USA.

                (And for the record, small planes are really dangerous; general-aviation crashes have a one-in-four fatality rate, even guns are only one-in-three and they’re supposed to kill you!)

                “It doesn’t restrict lawsuits by people who are not users of the plane, but get harmed by a plane.”

                But it does restrict lawsuits by the survivors of those killed in a small-plane crash, who are most certainly harmed by the product in question.Report

              • DensityDuck in reply to DensityDuck says:

                Oh, and by the way? You can ABSOLUTELY sue a gun manufacturer if their product causes unintentional harm due to failure to function, which is the particular legal theory you keep nattering on about.Report

              • DavidTC in reply to DensityDuck says:

                Oh, and by the way? You can ABSOLUTELY sue a gun manufacturer if their product causes unintentional harm due to failure to function, which is the particular legal theory you keep nattering on about.

                Oh, you really got me, not knowing that.

                Except of course, I obviously did. I quote myself ‘Why do you think these blanket protections against suing gun manufacturers against any intentional use of their product exists if you are so sure no one could sue over it?’

                Do you see that word _intentional_ there? What do you think I mean by that word? Do you think I think misfires are intentional?

                Wait, here’s me using the exact same words again: ‘it cannot be sued for intentional use of their products’

                Huh.

                Or maybe this paragraph, way back at the start: Biden saying ‘We should stop putting gun manufacturers under this special law that prohibits certain lawsuits against them,and instead treat the same as literally any other manufacturer’

                What do you think the term ‘_certain_ lawsuits’ means? Does it mean I know there _are_ lawsuits that aren’t covered under this, and are in fact allowed? Why yes it does!

                You’re trying to play gotcha games and not actually reading what I said. Everyone involved in the actual conversation already knows this, we already know the boundaries of what we’re talking about. Dark Matter has mentioned it also, that the exception only includes deliberate use, and gun manufacturers are indeed liable for actual accidents. We all know this, we don’t need to say it every post.

                But you are the sort of person who has decided to randomly argue with me, so you jump in, misread things, and pretend the fact I didn’t fully explain things _every post_ to your satisfaction means I don’t know them.Report

              • DavidTC in reply to DensityDuck says:

                so maybe that “eighteen years” isn’t doing as much lifting as you imagine

                I’m not sure what you’re arguing here. You’re acting like I’m a fan of this law…I’m not really. It’s saying it’s a somewhat reasonable law…in theory.

                I was just pointing out your ‘blanket liability protections for airplane manufacturers’ was utter nonsense. It’s not a blanket protection for aircraft manufacturers at all…and despite the fact that most _small_ planes are that old, and thus covered, I note you said ‘airplane manufacturers’, which is…just not true. ‘airplane manufacturers’ and ‘small airplane manufacturers’ are not identical things, or even close.

                Also, this law is kinda bad, and has been used to cover up all sorts of problems with small aircraft for decades. The idea sounds reasonable, but…how it actually works isn’t. And US Today ran an expose on it a while back: https://www.usatoday.com/story/news/nation/2014/06/17/small-plane-crashes-investigation/10717427/

                And incidentally, I didn’t mention this, but that law does exist because ‘politically-connected airplane manufacturers have manipulated the government into giving them official protection despite the highly-dangerous nature of their products’. That’s literally why the law exists. I have no idea why ‘you don’t see people suggesting that’. It happened after _years_ of industry lobbying.

                Also…if you bothered to use any level of reading comprehension, you’d see why this was not a good objection to my point about the unique situation the gun industry is in:

                The gun industry cannot be sued if someone mimics their ads and shoots someone in a manner those ads implied was proper usage of guns, but is illegal.

                The aircraft industry _can_ be sued if they show an ad showing someone buzzing a city street at an illegal height, and talking about how fun it is, and someone does that and crashes. They even have two sources to worry about lawsuits from: One, random civilians who get hurt, and two, customers who are not flying 18+ year planes! (They also haven’t built an entire political dogma that requires such a thing, so really don’t have an incentive to do it in the first place.)Report

              • DensityDuck in reply to DavidTC says:

                “You’re acting like I’m a fan of this law…I’m not really.”

                I’m acting like you’re suggesting that laws limiting liability lawsuit are some Special Gun-Industry Only Thing That The Gun Lobby Got Made Special Just For Them and I’m replying that this isn’t true, not even a little bit.

                “[The General Aviation Revitalization Act] is kinda bad, and has been used to cover up all sorts of problems with small aircraft for decades.”

                I guess it should not be surprising that upon being handed your ass you’d come back with “well, maybe airplane manufacturers DESERVE to be sued into the dirt!”

                “The gun industry cannot be sued if someone mimics their ads and shoots someone in a manner those ads implied was proper usage of guns, but is illegal.”

                I was watching TV the other day and I saw a clip of someone driving a sports car quite fast along California Route 1, with a strong implication that they were exceeding the speed limit, certainly operating their vehicle in a way that was beyond the skill of most drivers to emulate safely, in a situation where duffing it on a curve would put you 100 feet in the air above the Pacific Ocean, and yet they were allowed to have that on TV no problem at all, just a little text disclaimer saying “PROFESSIONAL DRIVER ON CLOSED COURSE”.

                (I look forward to your 1973-word comment about how auto manufacturers ALSO have engaged in decades of lobbying to have legislation passed absolving them of responsibility in single-driver accidents and maybe they SHOULD get sued by literally everyone in the United States and that would FORCE them to improve public safety measures and blah, blah, blah.)Report

              • DavidTC in reply to DensityDuck says:

                I’m acting like you’re suggesting that laws limiting liability lawsuit are some Special Gun-Industry Only Thing That The Gun Lobby Got Made Special Just For Them and I’m replying that this isn’t true, not even a little bit.

                No, I’m acting like laws limiting liability _for pretty much any thing gun manufacturers say to sell their products_ (Along with other things) is fairly unique.

                Other places that have limited liability have it for specific nuisance issues about things they can’t really control. The GARA is _supposed_ to be like that, considering how often aircraft manufacturers were being sued for stuff they couldn’t possibly fix. It goes a little too far, but it is is, at least, supposed to be fixing that.

                Gun manufacturers were also hit by a bunch of nuisance lawsuits, or so they claim. Some of those were not actually, like the lawsuits about the fact that the gun industry is extremely bad at stopping at theft and resell of their products to people not legally allowed to possess them, which is something they should be liable for. (Ask the alcohol industry about that one.) But whatever. Some of them were nuisance.

                But the difference there is the gun lobby paid Congress for what is basically the widest limited liability that exists, and the way it’s interpreted it ended up covering them promoting dangerous and illegal behavior with their own product.

                That’s well past what _any_ other industry can do. Other industries get fairly specific protections, not ‘the only thing is if the product meets suitability for purpose’.

                I was watching TV the other day and I saw a clip of someone driving a sports car quite fast along California Route 1, with a strong implication that they were exceeding the speed limit, certainly operating their vehicle in a way that was beyond the skill of most drivers to emulate safely, in a situation where duffing it on a curve would put you 100 feet in the air above the Pacific Ocean, and yet they were allowed to have that on TV no problem at all, just a little text disclaimer saying “PROFESSIONAL DRIVER ON CLOSED COURSE”.

                Huh. So, they showed someone using the product in a way that could be illegal or dangerous, and they felt the need to _immediately_ disclaim it due to worries about lawsuits.

                Thank you for proving my entire point about how the gun industry is able to get away with saying things about their products that no one else can or they’d be sued into the ground.

                …and, no, before you respond with the idea that I’m just talking about adding disclaimers…the gun industry (Which, again, I’m including the NRA as part of that as gun manufacturers all _point to_ the NRA as experts.) not only shows its product used in certain ways, but _promote_ their use in that way and assert that particular use is legal.

                It’s almost the opposite of a disclaimer, it’s replacing ‘PROFESSIONAL DRIVER ON CLOSED COURSE’ with ‘DO THIS WITH OUR PRODUCT! DO IT! IT WILL KEEP YOU SAFE, AND IT’S HOW THE LAW WORKS!’.Report

              • DensityDuck in reply to DavidTC says:

                “the gun industry (Which, again, I’m including the NRA as part of that as gun manufacturers all _point to_ the NRA as experts.) not only shows its product used in certain ways, but _promote_ their use in that way and assert that particular use is legal.”

                I’m pretty sure that liability-shield laws don’t cover actual criminal incitement

                “Well if you shoot someone in a very specific combination of circumstances then it’s not actually technically self-defense and in some jurisdictions you might have conducted a criminal act” yeah that doesn’t mean ads touting firearms for self-defense are promoting illegal activity, bro

                “[T]he gun industry is extremely bad at stopping at theft and resell of their products to people not legally allowed to possess them, which is something they should be liable for. (Ask the alcohol industry about that one.)”

                not sure what this wharrgarbbl is supposed to mean because I can totally buy a forty of King Cobra and sell it to the kids outside the store and AB InBev cannot stop this (and nobody expects them to)

                “So, they showed someone using the product in a way that could be illegal or dangerous, and they felt the need to _immediately_ disclaim it due to worries about lawsuits.”

                and all it took for them to be totally shielded from liability was a small text disclaimer, not on screen for the whole ad, not in the voiceover, only in English, with a vague statement about obeying local traffic laws

                and I’m pretty sure if you look in that gun ad you’re so torqued about you’ll see some fine-print text about “inappropriate firearm use can lead to criminal liability, follow all local laws and regulations”

                soooooooReport

              • Dark Matter in reply to DensityDuck says:

                “So, they showed someone using the product in a way that could be illegal or dangerous, and they felt the need to _immediately_ disclaim it due to worries about lawsuits.”

                The number of examples he’s shown (outside of political campaign ads) holds steady at zero.Report

              • DavidTC in reply to DensityDuck says:

                I’m pretty sure that liability-shield laws don’t cover actual criminal incitement

                Um, no, because those are _civil liability_ exemptions, and criminal incitement is, obviously, criminal?

                Criminal incitement is also something that is basically impossible for a company to do, considering it requires a level of immedicy that no corporate entity can really manage…it’s incredibly rare for actual human beings to manage to hit the threshold for criminal incitement! I’m at a loss how a corporate person ever would. The board of directors stands there in front of a lynch mob voting to direct their CEO to tell the mob to kill someone?

                yeah that doesn’t mean ads touting firearms for self-defense are promoting illegal activity, bro

                No, but it does mean showing specific examples of things and implying they are the way people should use firearms is promoting illegal activities. And, since you seem slightly unclear about this…promoting illegal activies is entire legal in the US. No one can be arrested for that.

                Selling products to people, OTOH, and showing them (Or pointing to others as experts who show them) how to use the product you sold them, in an illegal manner, without making it clear that said manner is illegal, is a good way to get sued if anyone buys your product and does those illegal things you showed them, and the customer ends up getting criminally charged.

                not sure what this wharrgarbbl is supposed to mean because I can totally buy a forty of King Cobra and sell it to the kids outside the store and AB InBev cannot stop this (and nobody expects them to)

                You seem to have no idea of how lawsuits differ from the law, and it’s really annoying trying to explain this when you will not do any research. For the record, multiple entities have sued alcohol manufacturers for all sorts of things. Including promoting the use of their product by minors. Here’s one:
                https://www.washingtontimes.com/news/2004/apr/21/20040421-092337-2890r/

                And I quote the alcohol manufacturers: The companies have denied the accusations, adding that they invest millions of dollars in programs combating underage drinking.

                You see that? You see how companies _normally_ act?

                and all it took for them to be totally shielded from liability was a small text disclaimer, not on screen for the whole ad, not in the voiceover, only in English, with a vague statement about obeying local traffic laws

                Car manufacturers are not ‘shielded from liability’ by the disclaimer. They have made a calculated legal risk that such a disclaimer protects them enough that they would win a lawsuit.

                Again: I really feel people here do not understand how lawsuits work. The question is not if you ‘can’ be sued…anyone can be sued for anything.

                The question is how likely the chance of a winning lawsuit is.

                All other manufacturers, besides guns, make careful decisions about how their products are depicted in _anything_ they have to do with. Is the use of their product legal, is it safe, could the depiction be used against them in any sort of lawsuit. Not just ads, but anything they have given permission over. It’s part of basic corporate risk management.

                If if what’s depicted is not legal or safe, it at minimum needs to be disclaimed. And sometimes just dropped outright. I’ll bet in the ad you’re talking about, they didn’t show the speedometer? They’ll show the RPMs, show the engine reving, but won’t _actually_ show the speedmeter. Weird, huh? Well, there’s a reason for that.

                There is a somewhat vague line that car manufacturers walk down, a line deliminated by their lawyers saying what they can, and cannot, show in their ads. To avoid the risk of customer getting in a car crash (Or, more likely, the risk of someone else harmed by a customer getting in a car crash) suing them and winning.

                Compare this to ‘This illegal thing is totally what our products are for, that is entirely within the law, and you should do it?’ that gun manufacturers are doing. Which is an incredibly good way to get sued…unless you can’t.

                Again, it’s not illegal to tell people to do illegal things with cars. It’s not even illegal to sell someone a car and tell them to do illegal things with it! (Barring actual criminal incitement, which would be something like handing over the keys and telling them to run over that guy in front of the car.)

                It just _opens you up to liability_ in a lawsuit.

                Gun manfacturers do not have that consideration, and because of that, they are fine with promoting utter dangerous and illegal nonsense as the way their customers should be using ther products.Report

              • Dark Matter in reply to DavidTC says:

                All dangerous-product industries except gun manufacturers do this, making very specific cautionary statements about how their products should be used, and how they shouldn’t.

                Guns are inherently dangerous, they are not dangerous-products.

                Let’s just look up the legal definition of “dangerous-product” and see if that applies.

                Inherently dangerous [products] are those that have a high risk of injury. Examples are firearms and knives. If these products function as intended, manufacturers are not liable for defective design. For example, a pistol manufacturer of a firearm is not liable merely because the gun was used to kill another person.
                However, if the killing occurred because the gun was manufactured defectively, the manufacturer can be held liable for a manufacturing defect.

                https://www.legalmatch.com/law-library/article/dangerous-products.html

                Congress’ law prevents gun makers from being abused by legal ignorance and logical backflipping by people who oppose the concept of guns and want some way, anyway, to get rid of them. The basic concepts that guns kill people and killing people is a crime are wide spread in society. Expecting gun manufacturers to painfully explain that to everyone who buys a gun is just silly.

                Now if you’re looking for someone who is advocating indiscriminate gun violence and isn’t mentioning that it’s illegal, I suggest you watch the typical Hollywood action movie.Report

              • DavidTC in reply to Dark Matter says:

                It presumably was created by the NRA, which is not a manufacturer, which means you’re also holding one group responsible for other groups’ actions (sounds like the Texas law btw).

                Literally every gun manufacturer gives to the NRA, some in extremely large amounts, and they’ve set up incentives and promotions to fund the NRA.

                Which means that we can say ‘What comes from the NRA is information they want supplied’.

                And, again, I’m not holding anyone ‘responsible’ for the information. People are allowed to provide any sort of misleading information they want.

                However, if a company’s product harms someone, especially if that is via someone else committing a crime with it, it is entirely reasonable to look at what the company has said about the correct use of that product, and see if that illegal use was presented as a correct use.

                I repeat my question: You do understand why alcohol sellers say ‘Please drink responsibly’ in ads, right? You understand that is to keep them from being sued, right? Not that it’s a magical shield that stops lawsuits entirely, but it _helps_ their defense if there is a lawsuit against them for supplying a product that contributed to the injury of another. They aren’t doing that for _fun_.

                And the reason the gun industry isn’t doing that is that it cannot be sued for intentional use of their products, and thus it doesn’t _care_ how its products are used.

                Now if you’re right then you can and should get lots of people arrested. I’d suggest starting with Obama.

                Obama, like the gun industry, has first amendment rights. He can literally go on TV and tell people to shoot people randomly, and as long as it is not _imminent_ violence he’s incited, he is not breaking the law. (Hence the whole question about January 6th and how ‘imminent’ the speeches were to the violence…which is a completely different topic I won’t go into.)

                Hell, Obama can _mail people free guns_ and then go on TV and tell people to shoot people. The 1st amendment is a bitch.

                Obama will, however, probably get sued if someone actually _does_ that on his orders with his free guns.

                Lawsuits are not the same as laws. If someone’s action contributes to the shooting of someone, you can sue them, _even if that action is just speech_.

                And with the gun industry, and with this alternate universe Obama, the action wasn’t just speech. With the gun industry, in fact, they are presumably trusted to know what is legal to do with gun, so their mis-directions as to the legal use for guns should be even more damning.

                Congress’ law prevents gun makers from being abused by legal ignorance and logical backflipping by people who oppose the concept of guns and want some way, anyway, to get rid of them. The basic concepts that guns kill people and killing people is a crime are wide spread in society. Expecting gun manufacturers to painfully explain that to everyone who buys a gun is just silly.

                This claim is nonsense. The masturbatory fantasy of being able to shoot someone ‘to protect themselves’ are, straight up, promoted day-in and day-out by the gun industry and the politicians and organizations they operate. With literally no explanation of how that works, and in fact often using exactly and scenarios where the gun usage would be illegal. Stuff that would make lawyers scream in horror, except this entire thing operates outside the realm of law.

                The people who constantly talk about self-defense are a) misleading the population, and b) funded in huge chunk by the gun industry, and saying exactly what the gun industry wants.Report

              • Dark Matter in reply to DavidTC says:

                You can give money to a PAC or the GOP without agreeing with everything they say much less being legally responsible for everything they say.

                If you are trying to draw a legal line between manufacturers and crimes committed with their products, then that line can’t be drawn with Political positions and campaign ads taken by 3rd parties. Even trying to do that showcases why the current law was needed.

                What you need is something akin to your though experiment. Gun ads for the sale of guns suggesting illegal use of guns. Use our gun when you are killing your romantic rivals.

                Drink responsible ads are for combating legal misuse and/or illegal but caused by the judgement impaired. Deliberate misuse by criminals is a different world.

                We could make ads saying don’t shoot rival drug dealers and,or romantic rivals, but everyone already knows it’s illegal.

                The line that you pointed out Obama would need to cross is also the line that the manufacturers need to cross. Hollywood making an action movie or some Right wing talking head running his mouth is not “the manufacturers”.Report

              • DavidTC in reply to Dark Matter says:

                You can give money to a PAC or the GOP without agreeing with everything they say much less being legally responsible for everything they say.

                Again, no one is legally responsibility for that speech at all. And it’s not about who people give money to.

                What gun manufacturers are legally responsibly for (Or, rather, would be) is basic product safety stuff. How to use what they supply safely and legally.

                You know who the gun industry points at for that sort of stuff? It’s the NRA. (It’s actually what they used to do!) The NRA are widely promoted, with the purchase of a gun, as experts about guns. Manufacturers often have agreements with them, or agreement with gun store to promote them. The NRA are represented as experts by the people selling the product.

                Note that other industries do this too. The auto industry promotes safe driving, not really themselves, but at other groups that promote safe driving. Here is, randomly, Toyota:
                https://www.toyota.com/usa/safety#!/safety-education

                They work with (at least) five groups that promote driving safety. Places like the National Safety Council, which is a non-profit. You can follow the link, there’s a lot of resources there, blah blah blah.

                The difference is, at no point, will the NSC be promoting illegal or dangerous use of cars. Toyota would not be pointing at them and saying ‘Go there and listen to them’ if they were! If the NSC did start doing that, and Toyota kept pointing to them as safety experts, Toyota would get sued if the NSC’s advice harmed anyone.

                This is because people are allowed to assume that the companies who make things they buy are general experts about that thing. Those companies have responsibility over what they say…again, not the words, per se. But the safe and legal use of their product is, at some minimal level, their responsibility, so they have to not misinform people.

                And if the general public just has the generally wrong idea about how their product works, they really need to correct that…and they certainly need to not point people to the organization _originating_ that wrong idea and present them as experts.

                You still seem to keep falling back on constitutional stuff. This isn’t a constitutional issue.

                A chainsaw manufacturer can, legally, encourage people to join the ‘National Chainsaw Juggling Association’, and that organization, of course, can exist. All that is protected by the constitution.

                But they’re a reason chainsaw manufacturers don’t, and it’s not the law…it’s lawsuits. Not crimes, not even suing over the _words_, but liability over the directed misuse, direct or indirect, of their product and any harm incurred from that. (Including legal action against the user because the user did not understand the law.)

                Gun manufacturers are happily supporting the National Chainsaw Juggling Association and urging people to join it. It’s _really_ insane, from a legal standpoint, and only happens because we decided to bar them from getting sued over anything anyone chooses to do with guns.Report

              • DavidTC in reply to DavidTC says:

                Incidentally, if you _go_ to gun manufacturer’s site, you’ll see even they provide basic safety information. Like, all of them. They have safety initiatives, non-profits that promote safety, and everything you would expect from people selling fairly dangerous products. Exactly like car companies, they even have teen safety initiatives, it’s shockingly similar.

                …and then they also point people at the NRA and encourage them to join. And they promote NRA safety courses, which…like, I have no idea of the content of those, I’m sure they’re fine, actually. (Because the people giving them could indeed be sued, they aren’t immune like gun manufacturers.) But, the gun manufacturers are advertising them as ‘NRA sponsored course’, again, making the NRA sound trustworthy.

                Everything gun manufacturers do presents this picture of the NRA as an entity who can be trusted and is knowledgeable.

                Which in a sane world with sane laws would open the manufacturers up to a boatload of legal liability for any bad advice about their products that the NRA gave.Report

              • Dark Matter in reply to DavidTC says:

                What gun manufacturers are legally responsibly for (Or, rather, would be) is basic product safety stuff. How to use what they supply safely and legally.

                What gun companies are shielded from is being sued from illegal use of their products. Even your thought examples (you’ve failed to supply any real-world examples) are of advertising illegal uses of guns.

                Guns kill. That’s their function. Manufactures should be sue-able when their products blow up in someone’s hand or otherwise fail. They can’t get sued for the guns doing what they’re supposed to do.

                The difference is, at no point, will the NSC be promoting illegal or dangerous use of cars.

                The NRA wears multiple hats because the gun industry is smaller than the car industry. One of those hats is elections.

                I asked for an example of “promoting illegal use” and you pointed to an obviously-legal presidential campaign ad. The promotion you’re squeaking about doesn’t exist outside of politics.

                Gun manufacturers are happily supporting the National Chainsaw Juggling Association and urging people to join it.

                It is disingenuous to equate accidents with products and deliberately using them to commit crimes.

                The chainsaw equiv would NOT be “Joe mis-juggles a chainsaw and sues the manufacturer for suggesting that”. The chainsaw example needs to be something like “Joe cuts his wife’s lover’s head off and the manufacturer is sued”.

                Even your big thought experiment showcasing gun makers behaving badly consists of shooting someone who is engaged in a home invasion in a non stand-your-ground state. To what degree is failure to retreat a problem? How often does that happen in the entire country?

                The law exists to prevent gun makers being sued over murder and other deliberate misuses of their products. Getting rid of the law is an effort to let gun makes be frivolously sued over murder.Report

              • DavidTC in reply to Dark Matter says:

                What gun companies are shielded from is being sued from illegal use of their products. Even your thought examples (you’ve failed to supply any real-world examples) are of advertising illegal uses of guns.

                Almost every campaign ad the NRA runs advertises illegal uses of guns, or at least things that could be illegal in various states.

                They have absolutely no disclaimers, not even ‘Consult your local gun laws or police department for what the laws are in your area’.

                Guns kill. That’s their function. Manufactures should be sue-able when their products blow up in someone’s hand or otherwise fail. They can’t get sued for the guns doing what they’re supposed to do.

                There is no such thing as some legal ‘correct’ use of products in general. I have no idea how you think that would work.

                What people know about ‘correct use’ of something what _society and manufacturers_ tell them.

                Look at, for example, the Oxycontin lawsuits, which are about manufacturers saying a certain use of their products is safe, and ignoring all evidence it isn’t. There is not some objective ‘correct use’ handed down from God…the company said it could be used in a certain way without much risk of addiction, and the company was knowingly lying about that.

                Was the addictions from that the result of the ‘correct use of the product’? Well, no, because that question is literally meaningless. What it was was ‘use of the product as directed by the people who make it’. Manufacturers have a duty to make sure they are not misinforming their customers of how to use their product safely. (And note every time I say ‘safely’ that includes ‘legally’…it is not safe to do illegal actions, illegal actions opens you up to obvious risk.)

                Hell, when society is wrong just in general (Even without manufacturers misinforming them, like with guns), manufacturers have to fix even _that_!! That’s why batteries say ‘May explode or leak if recharged, disposed of in fire, short-circuited, or improperly inserted’ on them, because people often don’t know that…but they don’t say ‘Do not eat’, because people know not to eat batteries. But they maybe don’t know not to throw them in a fire, throwing things in a fire sounds very stupid, but there really are parts of society that dispose of trash that way.

                Those battery companies can be sued if someone throws the batteries in a fire and they explode. And I don’t mean ‘without that disclaimer’…battery companies can still be sued _even with that written on the battery_, it’s just having it there gives them something to point at in court to say ‘Look, we told you not to do that’ and probably win the case.

                The NRA wears multiple hats because the gun industry is smaller than the car industry. One of those hats is elections.

                And what does that have to do with anything? It’s the NRA’s name on that.

                Literally nothing is requiring gun manufacturers to keep promoting the NRA as some sort of expert. Or setting up deals for people to join it, or asking shooting ranges to give discounters to members. There are plenty of actual gun safety organizations.

                Gun manufacturers are doing that entirely because they want to, because they _want_ people mislead about the legal use of guns, and in fact that is the entire reason that _they_ operate the NRA. (Yes, they do. It is a lobbying group for them.)

                Even your big thought experiment showcasing gun makers behaving badly consists of shooting someone who is engaged in a home invasion in a non stand-your-ground state. To what degree is failure to retreat a problem? How often does that happen in the entire country?

                It’s funny how I say thing like ‘Everyone has fallen for a specific lie’ and then, later in the discussion, you repeat the misinformation. It’s also funny you’re asking ‘How often does that happen?’ in an ad that is literally based on a true story.

                What I am talking about is actually illegal in most places, the idea you can just shoot people who break into your house but are unarmed, or armed but not threatening you or not committing specific crimes. That’s what that ad showed. Someone who…broke in. That’s it. That’s what the ad described happening. ‘A convicted felony breaks into your home, and you use a firearm to defend yourself and your family.’

                …defend from what? An attack? Or just them being there? Taking your stuff? Because the true story the ad alludes to was someone unarmed just stealing a TV downstairs, and the homeowner went downstairs and shot them.

                Which was, of course, actually illegal in that state, like in _most_ states. (Although technically the homeowner was just charged for having an illegal firearm, not for the shooting, because the bill Obama had signed required actual self defense if you wanted to pull the ‘Yes, I had an illegal weapon, but you only knew that because of my self-defense’ defense. The courts just said ‘Shooting some guy for taking your TV isn’t self-defense, so, no, we can indeed charge you with having an illegal weapon.’.)

                And it’s not just that ad. It’s an entire framework they have built in people’s head about how this works, where you can just shoot people who are in your house illegally, or taking your stuff, or all sorts of bogus things. There probably are a few states that is legal, but, uh, plenty where it isn’t.

                And that’s just _part_ of the framework they have built. Stuff like Trayvon Martin _happens_ because the gun industry (Again, though the NRA) is running around promoting an entire narrative of illegal actions as why people should have a gun.

                (And, no, I’m not going to relitigate Trayvon Martin. You shouldn’t be hassling people who literally are just walking down the street, but that’s the sort of universe the gun manufacturers have created. Martin attacking Zimmerman was also stupid and probably not justified, but the entire situation exists because of what Zimmerman internalized from gun industry propoganda and how he can and should ‘defend’ things with his gun.)

                The law exists to prevent gun makers being sued over murder and other deliberate misuses of their products. Getting rid of the law is an effort to let gun makes be frivolously sued over murder.

                There is no such thing as ‘misuse’ or ‘correct use’ of products, under the liability exception law.

                And it’s not even legal or illegal.

                It’s intentional vs. unintentional.

                Anything that intentionally happens with a gun, gun manufacturers cannot be sued over. Even if it’s something illegal that they directly told people to do.Report

              • Dark Matter in reply to DavidTC says:

                Almost every campaign ad the NRA runs advertises illegal uses of guns, or at least things that could be illegal in various states. They have absolutely no disclaimers, not even ‘Consult your local gun laws or police department for what the laws are in your area’.

                So what? The NRA isn’t a gun manufacturer and campaign ads never have disclaimers because they’re not selling products.

                This makes everything else you’ve said specious.

                There is no such thing as some legal ‘correct’ use of products in general. I have no idea how you think that would work.

                You really should have followed the “legal definitions” link I put up which went over the difference between dangerous products and products that are inherently dangerous. It pokes holes in a lot of what you’re saying.

                the gun industry (Again, though the NRA) is running around promoting an entire narrative of illegal actions as why people should have a gun.

                My expectation is the number of dead bodies we see over this is pretty tiny.

                Your example, Zimmerman, legally used a gun to defend himself (so he’s actually an argument against your case). There’s an argument he wouldn’t have been “patrolling” (stalking around) if he hadn’t had a gun, but he had such extreme delusions of competence that’s debatable. Without a gun he’d have been a dead man with a taser or night club.

                This country has serious issues with guns in the context of cultural murder (X stole my girlfriend so I’m going to shoot him), we have serious issues with guns by criminal elements, we have serious issues with guns with suicide. There’s not a lot of room left for “killed when the other person had a duty to retreat”.

                I expect it happens. I also expect campaign ads directed at sub-urban voters have very little impact on inner city cultural violence (I expect those campaign ads aren’t even shown there), much less the criminal element.Report

          • Philip H in reply to Dark Matter says:

            The Left doesn’t want private ownership of guns.

            Um, us lefty gun owners want a word?

            First, we would like the originalists to politely remember the Second Amendment has 2 clauses, and the fact that the second is always emphasized by the Right is in grammatical error as well as legal error. Second, we’d be thrilled if gun ownership was as well regulated a voting is . . . or is becoming. Third, we’d like some acknowledgement that bearing arms is the second most important right, and we’d like to see the First defended nearly as vigorously.

            The problem here is there’s no law protecting abortion providers from frivolous lawsuits – the whole point of the Texas law is to bury abortion providers in lawsuits so Roe doesn’t have to be overturned.Report

            • Philip H in reply to Philip H says:

              Like all the amendments, the First governs government action against the citizenry. It is silent – on purpose – about private action by private news companies. Last I checked your fiend’s beef is with Google, not the government.Report

      • DensityDuck in reply to Dark Matter says:

        “This structure was the left’s idea?”

        Absolutely. See also: the Unruh Act, not to mention CEQA.Report

        • DavidTC in reply to DensityDuck says:

          Neither the Unruh Act or CEDA attempted to do an end-run around things the government can regulate. They take something that can be illegal, make it actually illegal, create a system and punishment to enforce that law…and _additionally_ allow a private right of action foir people harmed by those violations of law.

          Additionally, a private right of action isn’t ‘the left’s idea’. What sort of ahistoric idea is that?

          The idea of a private right of action to force the enforcement of laws is actually a very old idea. Often it is used to get around ‘problems in enforcement’, like those due to limited resources. It’s all over tons of laws, Federal and state. No one has a problem with victims having a private right of action in general. A huge chunk of lawsuits are really ‘enforcing a law that the government never bothered to do’. Here’s one where you can sue someone for breaking the law about stocks in some manner I don’t care to figure out: https://www.law.cornell.edu/uscode/text/7/25

          The Texas law is different in two ways:

          The first problem with the Texas law arises because you can file a claim _even with the illegality has not harmed you_. That’s the sort of thing you only see in authoritarian regimes that are trying to make their citizens turn each other in. China just did that with its Anti-Foreign Sanctions Law.

          The second problem is more unique. Because the ‘problems with enforcement’ I mentioned above that Texas is trying to get around is the fact that enforcement of the law is _unconstitional_…it’s so unconstitutional they literally barred the government from enforcing the law within the law.Report

          • DensityDuck in reply to DavidTC says:

            “Neither the Unruh Act or CEDA[sic] attempted to do an end-run around things the government can regulate. They take something that can be illegal, make it actually illegal, create a system and punishment to enforce that law…and _additionally_ allow a private right of action foir[sic] people harmed by those violations of law.”

            Except you don’t actually have to be harmed to sue on Unruh Act grounds, you merely have to exist as a disabled person and claim that some aspect of a business is not in compliance with the ADA. The Act declares that anyone who’s disabled and in California is a victim of any harm caused by noncompliance with the ADA.

            If you want to claim that the Texas law is overbroad, go for it, but it’s not like they invented the legislative notion of “literally everyone in the state is a potential victim”, and if that’s what you’re arguing against then there are many other things you’re arguing against as well.Report

            • DavidTC in reply to DensityDuck says:

              Except you don’t actually have to be harmed to sue on Unruh Act grounds, you merely have to exist as a disabled person and claim that some aspect of a business is not in compliance with the ADA.

              That’s not true. I don’t know where you got that from

              You have to be a “person aggrieved” under Unruh to sue. (Or be the government.)

              (c) Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following:

              https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=52.&nodeTreePath=6.2&lawCode=CIVReport

              • DensityDuck in reply to DavidTC says:

                “You have to be a “person aggrieved” under Unruh to sue.”

                sounds awesome bro

                how about you define “a person aggrieved” in such a way that it doesn’t come out as “is in California and is disabled”

                (if you really want to take the position of arguing that disabled persons’ feelings aren’t relevant to the matter, go for it!)Report

              • DavidTC in reply to DensityDuck says:

                how about you define “a person aggrieved” in such a way that it doesn’t come out as “is in California and is disabled”

                Did you miss the _front_ part of that? Did I need to bold the entire thing?

                To be a person aggrieved, you have be the person _against whom_ ‘that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section’.

                Or maybe I should have quoted the _other_ part of the law, the immediate thing at the top of the link: Whoever denies, aids or incites a denial, or makes any discrimination or distinction… Literally the first line of that link.

                Do you see that ‘a denial’? That means someone _asked_ for something and was denied due to their disability. That the harm actually happened.

                People can’t just sue under a claim ‘claim some part of the business does not comply with something’.

                Someone suing has to have attempted to _use_ the business, in some manner, and be unable to do so because the business will not make certain efforts to accommodate a disability.Report

              • Chip Daniels in reply to DensityDuck says:

                “A Lucrative Cottage Industry”

                Not only has the serial plaintiff not won a single case or received a penny, he is now having to hire a lawyer to defend himself from a criminal investigation by DA Chesa Boudin.

                Doesn’t sound very lucrative to me.Report

              • DavidTC in reply to DensityDuck says:

                In addition to Chip’s point that this is just extortion that the person is now under investigation for, I quote the article you just linked to: Mak says she never saw Garcia enter her restaurant and she says other merchants told her they never saw him enter their businesses either.

                Do you know why that person said that, specifically? Because that fact would be a legal defense. That’s why that was presented as a defensive argument to the paper!

                If Garcia, or whoever the ‘victim’ was, did not attempt to visit the store, it doesn’t matter what the condition of the store was. Because, again, you actually have to have been harmed to sue someone under California’s law. (Not only as a general principle, but also specifically here.)

                Even if every single store sued was completely out of ADA compliance, even if every one of them required people to do handsprings across a rope bridge into the store, the only way to win a suit under Unruh would be as someone who attempted to visit the store and was hindered. Like, physically present, came up in the wheelchair, and couldn’t get inside.

                Of course, in America, being unable to _win_ a lawsuit does not stop someone from _filing_ a lawsuit. Especially if you are willing to lie.

                This is why these lawsuits are being investigated as frivolous and the people filing them are being looked into…quite possibly because they lied about events that led to them filing suit. Because the suit requires harm, and that almost certainly resulted in them stating in the lawsuit that they were trying to visit the place and could not…so if they were _not_ trying to visit the place, they just committed perjury!

                …honestly, the really funny thing is here that you literally seem to be arguing the person was _not_ harmed (which is probably a correct interpretation)…but don’t seem to notice that such things would be not be covered by the law, and would probably require misleading the court, and is indeed exactly what the filers of these lawsuits are being investigated for!Report

              • DavidTC in reply to DavidTC says:

                Well, that’s not the only reason the lawsuits are being investigated, some of them are just blatantly frivolous to start with.

                As explained in here: https://climaterwc.com/2021/09/16/redwood-city-buisinesses-mount-joint-defense-to-ada-lawsuits/

                Coupal says she does have ADA-compliant tables outdoors. She has reviewed camera footage and found no wheelchairs coming to her café before the suit was filed. Likewise, Hashemi doesn’t know when Whitaker visited Arya, which is only open for dinner but says each dining area has a wheelchair-accessible table.

                …in other words, the lawsuits are basically just making a lot of things up. It’s not only that no one was harmed, it’s that the claims aren’t even true. (Of course, how would you know there’s a wheelchair-accessible table unless you actually show up in a wheelchair so the hostess can direct you to it?)

                You want to argue for some sort of tort reform so people can’t make blatantly absurd lawsuits based on lies, you do that. Last I checked, California actually has pretty strong rules about frivolous lawsuits, and these people are probably going to be hit pretty badly by them.

                But stop pretending that this particular law is any different than any other tort created under the law, which requires a _victim_ who has been _harmed_. (Or, someone who is lying about being a victim.)

                …unlike Texas’s law.Report

              • DensityDuck in reply to DavidTC says:

                “Do you know why that person said that, specifically? Because that fact would be a legal defense.”

                And yet a lawsuit was filed, and the defense was not “motion to dismiss without argument because there’s no legal grounds for filing this lawsuit,” the defense was not “this is manure, actually-disabled people come in here all the time and never have trouble,” the defense was accepting responsibility and paying fines and paying lawyer fees and making some halfhearted changes to the physical fixtures (removing outside tables and chairs, changing the way the payment counter is arranged, renting space from a neighboring business to put in a lower table with a “handicapped” sticker on it.)

                The guy who filed those lawsuits got his money.

                “This is why these lawsuits are being investigated as frivolous and the people filing them are being looked into…”

                lol

                they’ve been “looking into” lawsuits like this for more than ten years and they ain’t goin’ away any time soon

                “[Y]ou literally seem to be arguing the person was _not_ harmed…”

                No, I’m “literally” arguing that the idea of private lawsuits being used as an enforcement mechanism for government regulation was indeed a liberal Democrat idea, and the notion that bad actors might use this to extort people was met with “but surely the courts would not permit that!” And when I showed that it was indeed happening and the courts were most certainly permitting it, your response was to whine that that it can’t be happening like I say, it just can’t!Report

              • DavidTC in reply to DensityDuck says:

                No, I’m “literally” arguing that the idea of private lawsuits being used as an enforcement mechanism for government regulation was indeed a liberal Democrat idea, and the notion that bad actors might use this to extort people was met with “but surely the courts would not permit that!” And when I showed that it was indeed happening and the courts were most certainly permitting it, your response was to whine that that it can’t be happening like I say, it just can’t!

                You’ve, um, lost the plot entirely here. I guess I should repeat the actual things I’ve said here:

                The idea of a private right of action to force the enforcement of laws is actually a very old idea. Often it is used to get around ‘problems in enforcement’, like those due to limited resources. It’s all over tons of laws, Federal and state. No one has a problem with victims having a private right of action in general.

                Do you remember that? The disagreement I had with your original statement was not that ‘it could not happen’, my disagreement was that a private right of action was not the left’s idea. A private right of action is actually a _very common_ thing under the law, and the left did not invent it.

                I didn’t mention it, but _the ADA itself_ creates the private right of action. The ADA, created by that known leftist, George H. W. Bush, and passed nearly unanimously in Congress. Unruh (Or, rather, the parts that allow these lawsuits) is just copying it, and adding a slightly larger penalty and skipping the important ‘You do not have a pay a fine if you fix things fast enough’. (Which is probably a mistake, and encourages frivolous lawsuits, but is not some magical unique law that never existed before.)

                Aka, your entire premise that a private right of action is a ‘leftist’ concept is utter nonsense, the idea of this specific private right of action was created by a Republican Federal government.

                But this would be a nonsense anyway: A private right of action predates actual law enforcement, it’s the thing that existed _before_ governments started hiring people to enforce the law. Criminal law was sorta created out of civil law, all laws used to operate in the civil law framework of ‘victims being harmed and thus being compensated for said harm’, criminal law was invented to cover things where they were not clear victims so civil law didn’t really work but the law was needed to maintain public order. A private right to action is just taking a ‘law to maintain public order’ aka, something framed in a criminal way, and allowing people harmed by violations to explicitly sue under it instead of under a near-identical tort.

                The idea that ‘the left’ invented it is utter nonsense.

                The only difference between most tort law and what is being called a ‘private right of action’ here is that a private right of action just explicitly references the criminal law directly, making the things identical, as opposed to how tort law normally works, which often is building torts that are nearly the same shape as criminal law. Wrongful death is not exactly the same as negligent homicide or murder, but, um…is really close. A huge chunk of the civil code is just translating actual crimes that cause harm to victims into torts and deciding what damages should be for the harm!

                The Texas law doesn’t require harm. That’s one of the actual unique things about the Texas law, it allowed a private right of action _for someone who was not harmed by the lawbreaking_, which is not something you can find in any other civil law. Because civil law is based in the concept of torts and harm and requires that…which is, again, why criminal law was invented.

                You then try to make the argument that Unruh Act does allow unharmed people to sue. But the actual plain text of the law does not. It very clearly says otherwise, that you have to be an aggrieved person, aka, someone who was impacted negatively. The actual law is even clearer than the parts I cited, the entire law says things like: Any person or persons, firm or corporation who denies or interferes with admittance to or enjoyment of the public facilities as specified in Sections 54 and 54.1 or otherwise interferes with the rights of an individual with a disability under Sections 54, 54.1 and 54.2 is liable for each offense…

                That’s how the harm is defined…the business has to interfere with admittance or enjoyment by a disabled person. If they do not do that, it does not matter what hypothetically might happen had a disabled person shown up. Yes, people can _lie_ to the court and _claim_ be an aggrieved party, but…that’s not the same thing. Abuses of a system existing under the law do not mean we should not point out when a law is created to harm people _without_ it being abused!

                ‘Sure, this Texas law allows police officers to explicitly legally shoot Black people in the head whenever they see them, but they can _functionally_ do that anyway, so why is anyone complaining?’

                What sort of logic is that? Uh, the explicit law deliberately allowing the bad thing so people will do it…is indeed worse than ‘a situation we have not stopped all abuse of’! Obviously. jfc

                And yet a lawsuit was filed, and the defense was not “motion to dismiss without argument because there’s no legal grounds for filing this lawsuit,” the defense was not “this is manure, actually-disabled people come in here all the time and never have trouble,” the defense was accepting responsibility and paying fines and paying lawyer fees and making some halfhearted changes to the physical fixtures (removing outside tables and chairs, changing the way the payment counter is arranged, renting space from a neighboring business to put in a lower table with a “handicapped” sticker on it.)

                That isn’t at all what that link says. The link says they made some changes, but it doesn’t say they paid anyone off. What are you even talking about? Also that’s not how a ‘defense’ works. That’s how _settling_ works, not actually defending against a lawsuit in court. They said they are going to defend, not settle. And what I said pretty clearly _is_ going to be their defense. Their lawyer says ‘The people who are suing are not intending to ever return.’, the implication being the people suing are not actual customers, and did not actually try to be customers. And thus, as I point out, their lawsuit would be invalid.

                But let’s step back and figure out what this problem really is. The ADA and Unruh allows private enforcement of a law that people are required to comply with anyway. If someone was in violation, the Federal government could have sent in inspectors and issued fines themselves. The problem isn’t really ‘unrelated people are sueing’ per se (Because, the government, also an unrelated person, could be suing!), the problem is, without a third party directly experiencing the harm, it’s pretty easy to lie about the situation to the court, as business owners have alledged has happened.

                So the hypothetical problem here is not ‘People in violation of the ADA are getting punished and forced to fix things’, because…that’s what the law wants. In fact, that’s what the ADA and Urnuh wants! That’s why we have ADA regulations, to force people into compliance via fining them! The hypothetical problem there is ‘People who might not be in violation are getting hit with lawsuits it might be easier to settle than to prove they comply in court’.

                Aka, the court system is being abused. Which is a truth that applies to literally all lawsuits and is a pretty serious flaw in the system, and really doesn’t have anything to do with the fact the Urnuh and ADA gives a private right of action to a criminal law…the exact same thing can be true for _any_ tort, any grounds for a lawsuit.

                And now, compared to the Texas law: In addition to the fact the newly-granted right of lawsuit over abortion can be abused, it then turns around and makes it basically impossive to _stop_ any such abuser by making it impossible to recover damages for clearly bogus lawsuits. Which I _do_ get to complain about, we’ve spent _decades_ trying to stop abuses of the system, and this law deliberately stops any of this. The law is _designed_ for abuse.

                And I notice you ignore the other thing I brought up, the other unique part of the Texas law: The lawsuit would be over a violation of a law that is not constitutional. I don’t mean that in the metaphorical sense, I mean that in the literal sense…this law works by first unconstitutionally outlawing abortion, turning it into an actual crime…and then just allowing people to sue over that lawbreaking (Even when not harmed) instead of having the government enforce it.

                This is, again, nonsense, and absolutely nothing like what ‘the left’ has done.Report

  5. Slade the Leveller says:

    “Additionally, claimants are entitled to legal fees for successful cases, whereas defendants are never entitled to legal fees.”

    Would this not run afoul of the equal protection clause?Report

    • Philip H in reply to Slade the Leveller says:

      Equal protection means you get a trial. I don’t think it means you always get paid if you win.Report

    • PD Shaw in reply to Slade the Leveller says:

      One-sided attorney fee provisions are common in statutes and I am not aware of any challenges. In applying them, courts will explain their purpose is to encourage people to bring lawsuits they might not otherwise bring and deter defendants from the conduct targeted by the statute. I would argue that civil rights lawsuits follow this rule: Plaintiffs are entitled to legal fees for successful cases, whereas defendants are only entitled to fees if the plaintiff’s case was frivolous and without foundation.

      Private attorney general laws are usually enacted within the context of a perceived pre-existing imbalance in which large institutional actors dominate, and harms are too small or diffused to rely on government enforcement: Consumers vs. multinational corporations. Employee vs employer. The environment vs. the polluter.Report

      • PD Shaw in reply to PD Shaw says:

        It seems like the issue with the enforcement mechanism is likely to be that the Texas Constitution implicitly prevents the legislature from giving standing to someone without personal injury. The general rule in most states I believe (and as InMD said in an earlier thread) is that legislatures can create statutory rights with their own rules of standing. It is possible that the law fails on state grounds unrelated to abortion.Report

  6. Chris says:

    It has achieved its true aim, which is to say, there are now no clinics providing abortions in Texas, and it’s likely there will not be any until the courts sort this out, which will be difficult, because there will be no one to challenge it in court. So expect a bunch of other states to pass this law (some already have, immediately after Texas’ law went into effect), and expect women, and especially poor and non-white women, to suffer greatly before Democrats and the courts get their shit together.Report