The legal system that most people can't afford to use - Input Junkie
The legal system that most people can't afford to use|Here's a medium-sized example.
The vast majority of Americans can't afford to make much use of the legal system. I'm not sure where the dividing line is, but I'm assuming that only the top 5% or 10% can afford much in the way of legal action.
This means a high proportion of people can't afford a trial if they're accused of a crime, and can't afford to sue if a crime is committed against them.
I've never seen a good overview of the problem-- how we got into this mess, or it's overall effects, or how we might get out of it. Any suggestions?A variety of legal systems
-- not quite what I'm looking for, but possibly of interest.
The relatively cheering part of the picture is that most dealings between Americans seem to be reasonably benign, even in the absence of access to legal enforcement.
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comments so far on that entry.
|Date:||April 3rd, 2015 03:21 pm (UTC)|| |
I don't think you normally do sue if you're the victim of a crime. Criminal law is "The People v. X"; the case is argued on behalf of the state by a public prosecutor. Suing people on your own behalf is civil law; specifically, if someone injured you, it's tort law. Of course the same act can be both a crime and a tort—the crime of larceny and the tort of conversion have a lot of overlap. But criminal charges can be brought by the state on behalf of the public even if they victim is penniless.
What category would a bank taking someone's house when the payments were up to date fall into?
|Date:||April 7th, 2015 05:51 pm (UTC)|| |
It's surely a tort. Practically every crime (except victimless ones) also corresponds to a tort. (For example, OJ Simpson was found not guilty of the crime of homicide, but liable for the tort of wrongful death.)
As for whether stealing your house is a crime: probably, but you never know. In general, if a powerful person or corporation is doing something that would otherwise be a crime, you have to worry that the law may have an exception carved out for the powerful, either explicitly or just in the sense that it would not occur to a prosecutor to file a charge.
OTOH, a criminal conviction doesn't get you any damages.
Access to the legal system isn't all-or-nothing. Small claims courts are generally affordable to most people; I've got a hearing scheduled this month against a doctor who overcharged me.
Access to larger venues gets very expensive; I threw a lot of money at a lawyer in my harassment case against eyada.com, and the lawyer did nothing. Eyada folded while I was trying for months to get him to file something.
What does small claims court cost? If you get a settlement in your favor, how likely are you to collect?
Filing was $90. In the worst case, I don't have to pay the balance on my bill, and I think I have a good chance of collecting, since the doctor sent me a malpractice insurance form to fill in.
In other cases it's harder. In one case I sued a client that had not just refused to pay me but stopped payment on a check; the object of my suit was to legitimize my holding the computer hardware they'd lent me until I was paid. The hardware was worth more than they owed me, but they still refused to pay me, so I was stuck with a piece of junk in my basement.
|Date:||April 3rd, 2015 04:16 pm (UTC)|| |
The cost of a trial is definitely in the five figures: i.e., at least three months' entire income for an average American. And, of course, if you are accused of a crime that is worth going to trial for, you stand a good chance of not being able to earn income while waiting for that trial, or possibly ever again.
Not only people, small businesses have this difficulty as well. And small claims court can be of limited utility if the company you're suing lodges a counterclaim that can ruin you (a company I work for dropped its suit in exchange for the other side's dropping its suit, which had no merit but still would have been ruinous to let proceed).
The legal-systems link seems to make no mention of Roman-derived civil-code based law, which governs just about all non-Anglo-Saxon European-derived countries, plus Louisiana and occasional corners of the law in California. (I'm taking a class right now on translating Spanish language legal texts into English, so it's on my mind.)
Some caveats :
* (Government, usually appointed or elected) Prosecutors bring criminal charges, including most crimes against the person, not lawyers for the harmed person. Civil charges often must be brought by a lawyer for the harmed person, but lawyers who work with the poor (or many middle-class folk with strong lawsuits) are quite happy to work for retainer (a higher dollar return, dependent on a successful trial).
* A lot of effort goes into reducing the harmful impact of this sorta thing. The constitutional right to a defense lawyer in criminal trials isn't perfect -- the question of where it attaches, and how well-informed the defendant need be are ugly ones -- but it's pretty well-known that if someone's accusing you of theft that you should get a lawyer at some point, even if you can't afford one yourself, and police are required since 1966 to inform accused people who don't know (whether they actually /do/ is a different matter). Small claims courts exist for civil trials, as do (in most cases) class action lawsuits where the individual harm is small but applied to many people. Class-actions aren't great at reimbursing harmed individuals, but they're pretty good at naming-and-shaming companies and hitting those companies where it hurts.
* At least part of this is intentional. The civil court system has never been intended to solve "triffles" under the de minimis non curat praetor doctrine. As uncaring as that might seem, it's important to remember the high non-financial costs of weathering even civil trial: not only is there a significant reputation impact and time cost, enforcement is done by Men With Guns. If you don't trust the System, getting parts of the system involved everywhere is not necessarily a good option.
* That last point is especially true for things like copyright claims. The lack of a copyright "small claims" court means that it's hard to recover or even seriously counter copyright theft under a few thousand dollars. As patent trolling has pretty dramatically shown, big movers would have a pretty major and frightening advantage in sending out this sort of claim.
* Because of how crimes against the person are treated, there are some strong controls against at least some of the potential abuses, and the costs are huge compared to the actual per-situation profit these companies could make. They start randomly accusing people of things they didn't do, and by the end of the week they'll be drowning in legal summons. I'd actually be somewhat surprised if they don't run into a huge class-action lawsuit /anyway/ once they've got enough of a war chest to be worth suing.