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Tuesday, February 08, 2005

Vets suing those who disrespect them

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.

Posted by Beldar at 02:06 PM in Current Affairs, Global War on Terror, Law (2006 & earlier) | Permalink

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Comments

(1) Rob Crocker made the following comment | Feb 8, 2005 3:48:56 PM | Permalink

One question: How does this gibe with the hue and cry that lead to a "Support Our Troops" sticker being removed from a College truck?

The details in the volokh post say that the original complainant wasn't aware that he was filing a formal protest but was just pointing out the fact that the professor's door is in fact state property.

Wouldn't this make it fall under the same conditions?

(2) veryretired made the following comment | Feb 8, 2005 4:52:52 PM | Permalink

It has been painfully obvious for quite some time that PC speech codes, as well as the entire atmosphere generated by PC's pernicious influence, have smothered the rights of free speech and academic freedom in our universities, and, indeed, in much of society as well.

While we fuss about the comments of the CNN chief, or this or that leftist professor, a lynch mob is forming to destroy the career of the Marine officer who dared to say it felt good to kill terrorists.

It is long past time for the academic community to demonstrate a small fraction of the courage demanded of the warriors some of them so casually denigrate by calling loudly for the dismantling of these paralyzing and repressive codes.

There are thousands of our fellow citizens putting their lives on the line this very moment to protect and extend the rights that are so casually violated by the complicity and cowardice of those in academia.

(3) Deoxy made the following comment | Feb 8, 2005 5:00:38 PM | Permalink

As ludicrous as it is, only when the shoe is firmly enough on the other foot will the leftists and other purveyors of "speech codes" back down. Such tools are for use on the their inferiors only, of course, not them!

As such, painful as it is, I actually enjoy this. If this isn't enough, next it will take Christins making such camplaints, and I REALLY don't want to see that. But that's what it might take. Let the law apply EQUALLY to all, let none be "more equal than others", and the law will be made more fair than it is now.

(4) Ron made the following comment | Feb 8, 2005 6:06:58 PM | Permalink


Litigation might not be the best way to deal with a "hostile" college environment. After all, what constitutes a hostile environment to a veteran is someone trying to kill him, not some silly fool with posters.

I suspect the best approach would be nearly identical posters with the shoe on the other foot. Something like "Oppose the war, encourage terrorism", or "How many Iraqi children did our soldiers help today?".

(5) Wallace-Midland, Texas made the following comment | Feb 8, 2005 7:15:05 PM | Permalink

Dear Lawyer Beldar....as a Vietnam Veteran I get no respect and live in a hostile environment.

Can I sue my wife.........??
:>]

(6) Joe made the following comment | Feb 8, 2005 11:58:49 PM | Permalink

You most certainly can sue your wife....for a divorce.

(7) Obelix made the following comment | Feb 9, 2005 9:26:52 AM | Permalink

Academic and other institutions base their actions and policies on their perception of the liklihood of being sued, as in sued for "hostile environment." Even if this fact is regrettable, it would be even more regrettable if the only people who benefitted as a result were those on the left.

(8) Richard made the following comment | Feb 9, 2005 12:41:45 PM | Permalink

I enjoyed your angle on the lawsuit process. Contrary to media reports, it's no picnic--even for legitimately grieved parties.

Keep up the good work.

Richard
lawreligionculturereview.blogspot.com

(9) Mikey made the following comment | Feb 11, 2005 9:54:38 AM | Permalink

Payback is a female canine, isn't it?

(10) Old Patriot made the following comment | Feb 11, 2005 4:51:21 PM | Permalink

I'd have to say that any lawsuit for "defamation" based on being in the military would have to be situational. I certainly came in for enough ridicule during the 26 years I served in the Air Force, and I know quite a number of people in the Army and Marines who received treatment that was far less than civil. NO ONE should get a pass for treating someone else in a discriminatory (and frequently humiliating) manner because of their form of employment or choice of career. I do agree though that such behavior should first be addressed by legislative action. If (when) that fails, the alternative would of course be to sue.

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