Shoe on the other foot?
Vets suing those who disrespect them
By Beldar on Law
Prof. Glenn Reynolds has this short blurb up today:
ACADEMIC FREEDOM UPDATE: Are you a professor who criticizes the military or the war? Watch out — you may be creating a hostile environment for veterans!
This is idiotic, of course, but it's the natural consequence of hostile-environment theory, and I suspect that we'll see a lot more of these shoe-on-the-other-foot complaints.
The linked post from Prof. Eugene Volokh is typically eloquent and astute on the free speech/First Amendment issues involved, and I have no quibbles with or anything meaningful to add to his legal analysis. And I likewise agree with Prof. Reynolds that "hostile environment for veterans" claims — at least when matured into full-blown lawsuits — would usually be "idiotic." I do have a reaction as a practicing trial lawyer, though, that neither of these wise and witty law professors mentioned, and it's this:
Yes, there have been times when litigation has been a legitimate tool in advancing important social policies. The paradigmatic example was the civil rights litigation of the 1950s and 1960s. But in general, as a conservative (and despite being a trial lawyer), I'm very leery of trying to accomplish via civil lawsuits what you can't get passed by your state legislature or the Congress. For all their obvious flaws, those entities have tools to make value judgments and policy decisions that trial and appellate courts will always lack. And it's their main job. Because courts, by contrast, are supposed to decide the respective rights of the specific parties before them — albeit with sensitivity to the precedents they're setting that will affect others who are similarly situated — courts not infrequently blow it when they try to set broad social policies. And they're less responsive and accountable to the public than are legislators.
On this specific issue — public perceptions of and reactions to military veterans — the most important forum is not the law courts or the legislatures, but the proverbial "court of public opinion." And indeed, that's precisely where opinions have changed the most dramatically (and in my view for the better) during my lifetime. Veterans and active-duty forces are already winning on the homefront, just as they have on the battlefield.
Were a veteran to come to me, as a trial lawyer, asking for representation on such a claim of "hostile environment," before I ever agreed to pick up my sword for him or her in my role as an advocate-for-hire, I'd first spend some time in my role as counselor-in-private. I'd spend some time talking with my would-be client about flaws and limitations inherent in the lawsuit process. And in particular, I'd stress to my client that courts are particularly, frighteningly efficient tools for stripping away litigants' dignity. It's sometimes for better and sometimes for worse, but in every lawsuit, there's a trained professional whose job is to throw rotten eggs at you, and he also gets to root around in your private affairs to look for more rotten eggs to throw.
In his role as counselor, it's a lawyer's duty to not only answer the question of "Can we win in court?" but to also ask, and get an informed answer, to the question of "Should we even try?" I can postulate some extreme circumstances when the answer to that question on behalf of a veteran might be "Yes, we should," and when I therefore might take on such a client and case. But I certainly would want my client to understand that the uniform he or she has earned the right to wear so proudly is going to be put at risk of rotten egg stains, and that there may be, and probably are, more subtle (if slow) and effective (in the long term) alternatives to asking a judge to referee this fight.
In short, Prof. Reynolds may be right that more of these complaints, and possibly lawsuits, may be inevitable. Too many of my colleagues at the bar are long on zeal and short on judgment, and anyone who can pay the filing fee can get through the courthouse door. But suffice it to say that Lawyer Beldar won't likely be leading this particular counter-assault at the courthouse, despite my enormous personal and political sympathies and respect for our vets. |
