Bork-Peril Justice

On June 6, 2007, Robert H. Bork caused to be filed a lawsuit in the Federal Court for the Southern District of New York, wherein he is the named Plaintiff, and the Yale Club of New York City is the named Defendant.

Mr. Bork’s cause of action arises out of an incident which occurred on June 6, 2006, on which date Mr. Bork was visiting the Yale Club, a private club, in New York City, to deliver a speech at a luncheon sponsored by the New Criterion Magazine. It is perhaps interesting to note that Mr. Bork, though not a Yale alum, was a professor at the Yale School of Law during the Sixties and Seventies. He is currently a Professor of Law at the Ave Maria Law School located in Ann Arbor, Michigan. It does not appear that he was on medical leave during the 2006-2007 academic year.

Mr. Bork’s complaint was not verified, but was signed by his attorneys on his behalf. Your correspondent is unfamiliar with New York legal procedure. It is unknown whether there is a one year statute of limitations on tort actions in New York, and the suit was started on the last possible day it could successfully been brought, or if the filing on the one year anniversary of Mr. Bork’s injury was merely coincidental.

While attempting to ascend the dais on the date in question, Mr. Bork lost his balance, and fell backwards, hitting his left leg on the subject dais and hitting his head on an inconveniently placed heat register. While other, lesser, non-originalist, non-textualist men may have been deterred from a further assault on the lofty height, Mr. Bork, being a trouper, was made of sterner stuff. Though he may have been bloodied, he was unbowed. He raised himself up from the shambles of his fallen self, ascended that self-same dais, and delivered his oration like a good ‘un. It is unknown whether the head injury affected the form or content of the speech. I suspect that, after his talk, and after thunderous applause, Mr. Bork descended the dais, unaided, shook the hands of many well-wishers, and left the premises. One assumes, but admittedly does not know, that Mr. Bork, as a Virginia resident, employed in Michigan, was paid some small stipend for his comments.

The members of the Yale Club may well have been distressed, if not confused to read the subsequent complaint served on the organization by Mr. Bork’s attorneys. The complaint alleges that the Yale club failed to provide a safe dais or stairs or a handrail between the dais and the floor. Also, the dais was at an unreasonable height from the floor.

Mr. Bork’s complaint contains two counts, one alleging negligence and one alleging gross negligence. The allegations of fact in both counts are exactly the same in both counts except the words “wantonly, willfully and recklessly” are substituted in Count Two for the word “negligently” in Count One.

Mr. Bork alleges a leg injury (apparently the injury to his head from the heat register resolved), causing a large hematoma, which later burst, requiring surgery. Excruciating pain resulted, which prevented him from working his “typical” schedule after the injury. He also endured months of “relative inactivity” due to his injuries, and was “largely immobile” for some months.

Medical bills were incurred, and some lost income alleged, though, as indicated, he gave his speech that day, and was not listed as “on medical leave” on the Ave Maria website.

What does the complaint indicate that Mr. Bork, the accident victim, deserves in order to make him whole for this injury, caused by the negligence and willful, wanton, and reckless conduct of the Yale Club:

1. $1,000,000, and

2. Punitive damages, and

3. Pre-and post-judgment costs, interest and attorney fees.

For those who may not know Mr. Bork, he has served as Solicitor General of the United States, acting Attorney General, and Federal Court of Appeals Judge. In 1987, he was nominated for the US Supreme Court by President Reagan. His nomination was vigorously opposed by many groups, and the Senate eventually rejected his confirmation. The word “Bork” has now become a verb and as of 2002 has appeared in the Oxford English Dictionary. The word is defined: “To destroy a judicial nominee through a concerted attack on his character, background and philosophy.” During the confirmation process, opponents went so far as to obtain Mr. Bork’s video rental records. It is some interest to note that one video rented by Mr. Bork was the Marx Brothers’ “A Day at the Races”.

So we see that even highly educated, intelligent persons with long pedigrees of public service like Mr. Bork can become victims of negligent and reckless actions by organizations and corporations.

While it appears that Mr. Bork has much in common with many other persons injured apparently through no fault of their own, we should not separate Robert Bork the victim from Robert Bork the legal scholar and philosopher, and former judge, quite yet. For while this case may be the first occasion where Mr. Bork has been a part of the legal system in the role of injured plaintiff, he has previously expressed some definite opinions on the subject.

Mr. Bork has long been an advocate of “tort reform” measures to restrict the rights of injured persons. As recently as 2002, in an article he authored in the Harvard Journal of Law and Public Policy, Mr. Bork that Congress, by legislation, displace state tort law. He admitted, however, that the framers of our Constitution did not grant Congress such power. Mr. Bork wrote:

“State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress’s power, may now be constitutionally appropriate.”

Such a federal tort system would, Mr. Bork believes, combat the problem of frivolous claims and excessive punitive damage awards that apparently plague state courts.

Mr. Bork has long been an advocate of judicial restraint. He has criticized judges who “legislate from the bench.” Reinterpreting the US Constitution to grant Congress powers admittedly not included by the Constitution’s authors sounds like a liberal dose of judicial activism to me.

Admittedly, I know very little about the facts of Mr. Bork’s accident. If the Yale Club did not provide a means of ascending a dais and if it was a very high step and if there was no support provided, I can see how a case of negligence could be proven. No argument from me that the claim itself is frivolous. And, if Mr. Bork can prove his case, and if he incurred medical expenses, and wage loss and pain and suffering, he is entitled to reasonable compensation from the responsible parties. That seems to make common sense. But what makes this case especially interesting, is the nature of the claims a person of

Mr. Bork’s philosophy makes against the parties he holds responsible and the relief to which he claims he is entitled. It is also equally fascinating to consider what relief Mr. Bork get if his accident occurred under similar circumstances at the Detroit Athletic Club, Detroit, Michigan, the state where Mr. Bork is employed as a Professor of Law. And, coincidentally, a state where much of the indigenous judiciary has made Mr. Bork’s legal philosophy (or what they thought it was), the law of this state.

First, let’s take a closer look at Mr. Bork’s New York complaint. Quite honestly, if there is negligence here, it is because someone at the event didn’t think a step or railing to the dais was needed. Or forgot to even think whether one was necessary. Or accidentally removed on that was already there. Simple carelessness. Well, that is not quite good enough for Mr. Bork, the advocate of restraint, and the opponent of the frivolous claim. He alleges that the actions of the Yale Club were not merely negligent or careless, but willful, wanton and reckless. Maybe I misunderstood the facts. Maybe a member of the Yale Club threw him off the dais.

Anyhow, the actions of the Yale Club were so shocking the Mr. Bork does not merely want reasonable compensation ($1,000,000), but Mr. Bork wants the Yale Club to pay punitive damages, which of course he will be happy to keep for himself.

The reader might say that if the law in New York is so screwed up so as to allow people to collect such damages, why should Mr. Bork, merely because he doesn’t personally believe in such remedies, be precluded from obtaining all allows.

I would agree. It takes a man of strong character to let his personal beliefs restrain him from glomming onto all the bucks he can.

Except for this. Mr. Bork asks for punitive damages. New York law does not allow them. Mr. Bork asks for pre-judgment interest. New York law does not allow it. Mr. Bork asks for attorney fees. New York law does not allow them. Mr. Bork asks for $1,000,000 compensatory damages in his complaint. A federal complaint need only claim damages of $75,000 to invoke the jurisdiction of the court.

Now if these are the kind of remedies Mr. Bork wants included in the national tort law legislation he advocates, he might find that he has a lot more support among plaintiff attorneys than he thought.

Second, let’s move the location of Mr. Bork’s accident to the great state of Michigan, where Professor Bork helps develop the skills of future members of our state Bar.

In Michigan, the jury Mr. Bork demanded in his complaint would never hear his case. Mr. Bork would not get compensatory damages, much less punitive damages, even if the owners of the club admitted negligence. Mr. Bork could have fallen and killed himself due to the admitted negligence of any and all possible defendants, and Mr. Bork’s estate would be entitled to nothing other than possibly the bill for cleaning his blood off the dais.

Like Mr. Bork, many members of the Michigan Supreme Court are members of the Federalist Society, long-time advocates of “tort reform”. Mr. Bork’s judicial philosophy is called “Originalism.” The judicial philosophy of the Michigan Supreme Court majority is called “Textualism.” They are merely different euphemisms to label what is the worst kind of judicial activism as judicial restraint.

Well, cases decided by Mr. Bork’s adherents on the Michigan Supreme Court would make short work of Mr. Bork’s complaint. The height of a step is something Mr. Bork could see, so it was up to him to make sure he ascended it without injuring himself. The club has no duty to provide a step or railing or warning or anything else. After the fall, Mr. Bork ascended the dais without falling again, which is elegant proof that he should have done it without falling the first time.

If Mr. Bork was to argue that there was no other way to get onto the dais other than climbing an excessively high step, he would be no further ahead. Michigan cases would inform him, as his case was dismissed, that he was not required to ascend the dais at all. He could have spoken at floor level. He could have refused to speak at all, or he could have had the event cancelled and rescheduled for another day when there was a step or railing to the dais. If he had simply followed one of those three available alternate courses of action, he would not have fallen. If he hurt himself he has only himself to blame.

If Mr. Bork did not like the result of his Michigan case, he could appeal its dismissal. And some time down the road after an Appeals Court upheld the dismissal, Professor Bork might find himself using his own case to teach his Ave Maria law class the advantages of “tort reform.”

Robert Bork is a fine teacher. He teaches us a great many things by his actions in this case. First, the principles of tort reform apply to others, not to me. Secondly, frivolous suits are those brought by everyone–else. Thirdly, legal philosophy be damned–show me the money!!

May there always be men and women who will protect the common citizen from those who think them worthy of no consideration.

From the Originalists and the Textualists, Good Lord, deliver us. And, as they might say at the end of class at Ave Maria Law School—Amen.