#2 Summer 1989


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The following is an op-ed article on abortion written by TAFOL officers and circulated to various newspapers by The Ayn Rand Institute on behalf of TAFOL. The Christian Science Monitor initially accepted the op-ed article for publication but subsequently rejected it. No other publication has, to the best of our knowledge, published or agreed to publish the op-ed article.

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On April 26 the Supreme Court of the United States heard oral argument in Webster v. Reproductive Health Services, a case in which the Court is being asked - by the Solicitor General of the United States, among others - to overrule Roe v. Wade, the 1973 Supreme Court decision declaring that a woman has a constitutionally-protected right to choose to abort a fetus and end her pregnancy. Is Roe v. Wade right? Wrong?

Roe v. Wade is partly right in its result, but dangerously wrong in its reasoning. Roe v. Wade is correct in its conclusion that a fetus has no rights and that a woman has the right to determine whether or not to abort her pregnancy. But Roe v. Wade is wrong insofar as it holds that "state interests" justify interference with the woman's right and that, when the state so desires, it may commandeer her body either for her supposed benefit or the benefit of a fetus.

In some 37 pages of discussion on the substantive issues in Roe v. Wade, the Court spent barely three in discussion of the fundamental issue: the nature of the right to abortion. Much more attention was given to how and when this right may and should be limited to further the "state's interest" in the health of the woman and in potential human life. On the basis of such "interests," the Court decided that the state may regulate abortion throughout pregnancy to protect the woman's health and generally prohibit abortion when the fetus becomes "viable." In so deciding, the Court conformed to a theory which has prevailed in United States law for most of the twentieth century: rights are not absolute and must be "balanced" against (i.e., invaded by) the "interests" of the state. In Roe v. Wade, the Court concluded that at the point of fetal viability, the "state's interests" in potential life outweigh the woman's right to control her own body.

None of the main briefs filed in Webster, whether for or against abortion, expresses any opposition to "balancing." Indeed, attorneys for Reproductive Health Services, including counsel for the ACLU of Eastern and Western Missouri, endorse the idea. The ACLU attacks the Solicitor General for proposing an analysis in which "countervailing state interests undercut the nature of the right itself rather than guiding the extent to which it can be abridged." Is there much to choose between here? So long as it is assumed that rights may be overridden by "state interests" the only question is not whether, but how much will the right at issue be curtailed?

Abortion is a right, and all rights are absolute and cannot be "balanced" away. Ayn Rand has explained: "A right is a moral principle defining and sanctioning a man's freedom of action in a social context." The moral standard to be applied, Ayn Rand has shown, is that of man's life and what is "required by man's nature for his proper survival." The fundamental condition for man's survival is the freedom to use his rational faculty to maintain and enjoy his life. Thus, a pregnant woman, like every other individual, has the right to determine her own destiny and the destiny of her body, to choose what constitutes her own best interest and private happiness and to work for its achievement, so long as she respects the same rights in others.

These rights, and all rights, are absolute by their nature. It cannot be proper to negotiate moral principles. It cannot be proper to allow a man only a portion of the freedom he requires by his nature.

What of the fetus? Does it have rights which must be respected? The concept of rights is based on man's nature and presupposes the existence of an actual, fully-formed and separate human being. Fetuses and embryos are not actual human beings; they are potential human beings. They have no rights until they exist apart from the mother, i.e., at birth.

This is not to condone the morality of arbitrarily delaying an abortion until the last months of pregnancy - when the fetus is approaching humanness. But the function of the law is to protect rights - not to dictate moral issues which involve no violation of rights. The only proper function of government is to protect man's absolute rights against violation by other men. No government, no state, no collective has any "interest" apart from the individuals of which it is composed. Thus it can have no "interest" which conflicts with any individual's rights, such as a paternalistic interest in "maternal health." Our Constitution was drafted in recognition of these principles. It was designed, not as a charter for government power, but as a protection against government power, i.e., against invasion of individual rights by the government. For this reason, the Constitution enumerates the limited powers of the government but not (as made clear in the Ninth Amendment) every individual right.

These are the principles that should be advanced in Webster. If Roe v. Wade is reconsidered, the Supreme Court should affirm abortion as a right that cannot be invaded or compromised.

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Steve Plafker - Vice-President

Steve Plafker, Vice President of TAFOL, is a Deputy District Attorney in Los Angeles. Steve joined the District Attorney's Office shortly after his admission to the bar. After five years, he left to try private practice. He first worked for a firm in Delaware and later for himself in the Los Angeles area. Ultimately, he decided that prosecuting was his "niche" and returned to the District Attorney's Office. Until recently, he specialized in fraud cases and computer crimes; he now prosecutes a broad spectrum of cases.

Steve believes that an Objectivist prosecutor, in today's culture, is confronted with philosophical difficulties. In order to carry his weight, he must prosecute activity which should not be criminal. He also develops a feeling of isolation, not because of disagreement with his coworkers, but because the vast majority of them do not understand what he is talking about.

"Despite these difficulties," Steve says, "I get pleasure out of my job. I like working with police officers; I enjoy preparing and presenting a case in such a way that twelve ordinary people will be convinced, beyond a reasonable doubt, of the correctness of my position. I particularly like to get involved at the investigative stage. This allows me to develop the case as an integrated whole."

Steve was introduced to Objectivism about twenty-five years ago. A friend loaned him a copy of Anthem in the belief Steve would be interested. His friend was right.

Dee Tagliavia - Treasurer

Margaret ("Dee") Tagliavia, Treasurer of TAFOL, is Managing Tax Director of Research and Planning for Marriott Corporation at its Bethesda, Maryland headquarters. Her primary responsibility is to assist with the tax planning and structuring of Marriott - sponsored hotel syndications. "I enjoy the challenge of applying incredibly complex tax rules to intricate business transactions with the objective of minimizing the adverse effect of those rules upon the transactions," she says. Prior to joining Marriott in February 1987, Dee was employed over a period of five years, first in the Dallas office of Laventhol & Horwath, a public accounting firm, and then as a tax and real estate attorney with Denton & Guinan, a Dallas law firm.

Dee holds a Master of Law in Taxation from Georgetown Law School and a J. D. from the National Law Center at George Washington University, where she was Articles Editor and subsequently Executive Editor of the Journal of International Law and Economics.

It was through her husband, Bob Gifford, that Dee was introduced to Objectivism. Dee and Bob met in a political theory class as undergraduates at the University of Denver. "Shortly after we met," Dee says, "Bob convinced me to read Introduction to Objectivist Epistemology in conjunction with an assignment for an undergraduate class in constitutional law." Of her current involvement in TAFOL Dee says: "I am very excited to be involved in projects which apply the principles of Objectivism to law."

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You may have heard of Critical Legal Studies in connection with a 1988 faculty rumble at Harvard. What is Critical Legal Studies?

Critical Legal Studies is an avowedly political movement among law school professors. The politics: socialism. Critical Legal Studies officially started at a 1977 gathering of left-wing professors. Many hundreds now attend Critical Legal Studies' annual conference. CLS is strongest at Harvard and Stanford Law Schools. As of February 1989, a quarter of Harvard's tenured faculty were proponents of CLS.

The "Crits," as they are called, rail the loudest about the "legitimating" effect of traditional legal principles, claiming that unjust structures of power and distributions of wealth result from those principles. As explained in one anti-Crit article: "For neo-Marxist radicals, after all, capitalist democracy is a miserable, oppressive, and alienating system; it is therefore puzzling to them that so many people in the West seem so satisfied with their lot. One popular explanation is that ideology (and here, law in particular) can 'legitimate' an oppressive system by inducing 'false consciousness' in the people." Thus, according to the same article, the Crits believe that "law dampens revolutionary ardor by limiting the capacity to imagine alternative social structures."

The Crits view traditional legal principles as totally subjective and arbitrary. "Rules of law do not have constraining force, because the rules mean only what those interpreting them want them to mean."

With what do the Crits wish to replace traditional legal principles? Well, they're not quite sure what the legal rules will be. One prominent Crit states: "The spirit of the anti-rights, anti-legalist approach is to abandon known distorting categories, to leap ahead, not fully aware how one will reconstruct the world." They are sure, however, that the guiding light will be socialism. One leading Crit writer says that if he were on the Supreme Court he would, simply, promote socialism. What concrete actions are suggested? Here are two examples: Students should infiltrate corporate law firms "to confront, outflank, sabotage, or manipulate the bad guys," and janitors and law professors should exchange jobs every six months. (It has been observed that no Crit has volunteered to go first with respect to this last suggestion.)

None of this, of course, is new. It may be a consequence of the coming-of-age of law professors who grew up in the Sixties. Nor is there anything new about the quality of the
opposition. The National Review attacks the Crits on the ground that traditional legal principles are "popularly supported" and "comport[ ] reasonably well with common moral standards and aspirations." Similarly, Harvard Law School's new dean, Robert Clark, whose appointment was viewed as a blow to the Crits, commented as follows:

     Thoughtful legal scholars in other schools of thought are likely to agree that a major
     function of legal discourse is to legitimate the legal system's norms. It would be a
     sorry and badly functioning legal system that did not try to legitimate a dominant
     set of norms; and it is probably impossible to do this in any society without a fair
     amount of myth-making and mumbo-jumbo. But this is different from contending,
     or assuming, that our system's rules are fundamentally unjust - as tested by some
     supposedly transcendent set of values or ideals - and that its mythologizing and
     legitimating efforts are fundamentally evil.

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So much for any principled opposition. TAFOL will keep an eye out for notable developments.


In many states, a prerequisite to the practice of law is membership in the state bar association. This is called the integrated, or unified, bar. Many of these integrated bar associations support legislation and take positions on controversial issues.

An extreme example occurred in 1982. The California State Bar Association, under the leadership of its then president, Anthony Murray, used its compulsory membership fees to support the reelection campaign of State Supreme Court Chief justice Rose Bird. Murray took an aggressive stance. He described Bird's opponents as "self-seeking prosecutors and lawyers who want to be judges," "unscrupulous politicians," "bullies," and "political mercenaries who are trying to pull down our legal system." The statements of her opponents were characterized as "the idiotic cries of self-appointed vigilantes."

In the words of one court: "Naturally, dissenters are offended by being forced to underwrite their own public vilification." A number of such dissenting lawyers, led by Eddie Keller and supported by a conservative group, the Pacific Legal Foundation, filed suit seeking to have the propagandistic activity of the State Bar Association declared unconstitutional. They relied on a line of cases decided by the United States Supreme Court holding that a union's propagandistic activities must be financed only by assessments from employees who do not object to the positions taken.

They were not the first. About twenty-five years earlier, a Wisconsin lawyer, Trayton L. Lathrop, paid his bar dues under protest because, as he said, "I do not like to be coerced to support an organization which is authorized and directed to engage in political and propaganda activities." He contended that this violated his rights of association and free speech. His case reached the United States Supreme Court in 1961. The Court ruled that the integrated bar violated no one's right of association because the only obligation was to pay dues. The free speech issue was not decided. Four justices ruled that this question was not ready for decision, since Lathrop had not alleged any specific positions taken by his Bar Association with which he disagreed.

In the Keller case, the California Supreme Court ruled that the Bar Association may take positions germane to its statutory purposes but may not engage in campaign activity. It distinguished the union cases by characterizing the unified bar as a government agency which "may use dues for any purposes within the scope of its statutory authority." This would include extensive propagandistic activity.

This decision has been declared a partial victory for the Keller camp; in fact, it is a total defeat. The restriction placed on the State Bar is negligible.

Two similar cases were brought in federal district courts and appealed to courts of appeal. The first was instituted by a Wisconsin lawyer, Steven Levine. He won his case in the district court but lost in the Seventh Circuit Court of Appeals. The other was brought by a group of lawyers in the Virgin Islands. They lost in the trial court; the Third Circuit made a ruling similar to that of the California Supreme Court.

Messrs. Keller and Levine have filed petitions seeking review in the United States Supreme Court. From reading the opinions in these cases, one gets the impression that the issue is difficult. Thomas Jefferson would have found it easy: "[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical . . ."


Featured in TAFOL's last newsletter was a report on a sensible op-ed article written by Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. The article criticized subjective interpretation of statutes. In May, we spotted Judge Kozinski's concurring opinion on an appeal of a judgment dismissing a counter-claim in Oki America, Inc. v. Microtech International, Inc. (No. 881-1561, April 7, 1989). His target here is the trend toward creating tort liability in contract disputes. Judge Kozinski exposes this trend as an effort to interfere with, and subjectify, business relationships.

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Oki sued Microtech in connection with a contract dispute. The contract claim settled early in the proceedings, but Microtech had counterclaimed for "bad faith denial of the existence of a contract," a tort defined in a 1984 California case. This is not a contract cause of action; it exists apart from any issue of breach. The elements are denial of the existence of a contract in "bad faith" and "without probable cause." The standard is whether the conduct "offends accepted notions of business ethics."

Judge Kozinski described the evidence presented in support of the counterclaim in the Oki case as "statements in Oki's pleadings, rumors racing through the Oki grapevine, and a letter in which Oki's president offers his interpretation of the contract." On this shaky basis, Microtech sought $600,000 in compensatory damages and $2.5 million in punitive damages.

This newly-coined tort layers additional and unlimited damages on top of a cause of action for breach of contract. Judge Kozinski comments:

     Nowhere but in the Cloud Cuckooland of modern tort theory could a case like this
     have been concocted. One large corporation is complaining that another obstinately
     refused to acknowledge they had a contract. For this shocking misconduct it is
     demanding millions of dollars in punitive damages. I suppose we will next be
     seeing lawsuits seeking punitive damages for maliciously refusing to return
     telephone calls or adopting a condescending tone in interoffice memos.

Judge Kozinski notes that the new tort provides a prime opportunity to subjectify the law:
In inventing the tort of bad faith denial of a contract . . . the California Supreme Court has created a cause of action so nebulous in outline and so unpredictable in application that it more resembles a brick thrown from a third story window than a rule of law.

Here is Judge Kozinski's observation on the effect this type of decision has on commercial relationships:

     [C]ommercial enterprises [cannot] be expected to flourish in a legal atmosphere
     where every move, every innovation, every business decision must be hedged
     against the risk of exotic new causes of action and incalculable damages. . . . .

     The right to enter into contract - to adjust one's legal relationships by mutual
     agreement with other free individuals - was unknown through much of history
     and is unknown even today in many parts of the world. Like other aspects of
     personal autonomy, it is too easily smothered by government officials eager to
     tell us what's best for us. The recent tendency of judges to insinuate tort causes
     of action into relationships traditionally governed by contracts is just such overreaching.

Judge Kozinski urges reconsideration of the 1984 decision giving life to this new tort.


On November 8, 1988, the voters of the State of California passed Proposition 103. The Proposition begins with the allegation that "[e]normous increases in the cost of insurance have made it both unaffordable and unavailable to millions of Californians." It goes on to claim that "[t]he existing laws inadequately protect consumers and allow insurance companies to charge excessive, unjustified and arbitrary rates."

Under Proposition 103 as passed, every insurance company in California would be required to reduce its rates for automobile insurance to 20% less than those in effect on November 8, 1987. There would be a further 20% "Good Driver Discount." The insurer would be required
to maintain these rates until November 8, 1989, unless it could demonstrate, in a hearing before the insurance commissioner, that it is substantially threatened with insolvency. Tax rates on the insurance companies would be "adjusted" so that the lowered rates do not result
in reduced revenue to the State.

All automobile insurance rate changes would have to be approved by the commissioner. Of course, the commissioner could not allow a rate that is "excessive, inadequate, [or] unfairly discriminatory." Proposition 103 states that in making such judgments, "no consideration shall be given to the degree of competition and the Commissioner shall consider whether the rate mathematically reflects the insurance company's investment income."

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An insurance policy could be cancelled only for nonpayment of premium, fraud or material misrepresentation, or a substantial increase in the hazard insured against.

An "independent, non-profit corporation" would be created to "advocate the interest of insurance consumers in any forum" and would be "operated by individuals who are democratically elected from its membership."

Peter Schwartz has written that Proposition 103 is "a rabble-rousing assault upon the profits of the insurance industry." Its net effect is to replace agreements between providers and consumers by edicts of an elected official. It was one of a confusing group of several initiatives presented to the voters last November. The insurance industry spent millions in an ineffectual, anti-intellectual, self-defeating campaign against it. The method used was to offer a competing no-fault initiative allegedly designed to reduce premium rates and to attack "greedy" trial lawyers. With this opposition, Proposition 103 passed without difficulty.

The insurers then attacked the Proposition on constitutional grounds in Calfarm Insurance Company v. Deukmejian. The California Supreme Court rendered its decision on May 4, 1989. It upheld the retroactive rate-controlling provisions and the provision restricting the insurer's right to refuse to renew, the latter largely on grounds that an insurance company could, if it chose, discontinue doing business in California. (If you don't like it, get out.) The provision limiting rate adjustments to companies threatened with insolvency and the formation of the consumer-advocacy corporation were found unconstitutional. Finally, the court declined to rule on the question of tax rates, on the basis of the well-worn principle that, in general, the legality of a tax may be questioned in court only after it has been paid.

Calfarm has been (accurately) hailed as a victory for Proposition 103. The opinion adopts every principle that has been used to violate property rights.

The policy embodied in Proposition 103 is spreading. In New Jersey there are two proposals to lower New Jersey's car insurance rates: one involves a 20 percent rate reduction; the other, a constitutional amendment to push premiums back to their levels of two years ago, and cut them 20 percent from that level.

The results of Proposition 103 are not difficult to predict. Some insurance companies will cease doing business in California, some will spend millions of dollars to influence the commissioner of insurance. The customers, the purported beneficiaries of the Proposition, as well as the insurance companies will pay the price.

Those who supported or voted for the Proposition deserve the consequences. So do the insurance companies. Unfortunately, the price will be paid by the innocent as well as the guilty.


Products liability law continues to erode traditional legal principles of culpability, although it got a bit of a comeuppance in a recent case. Candance Thorp sued Jim Beam Brands, a liquor manufacturer, seeking $4 million for lifelong support of her four-year-old son, born with certain physical defects diagnosed as "fetal alcohol syndrome." Thorp admitted to being an alcoholic and to drinking frequently to the point of passing out during her pregnancy. She claimed that there was specific evidence about the deleterious effects of alcohol on fetuses, and that had she been warned, she would have abstained from drinking during her pregnancy. The jury concluded that the dangers of drinking during pregnancy are common knowledge and found in favor of Jim Beam. But the case should never have gotten that far.

In order to recover under traditional tort principles, Thorp would have had to prove negligence on the part of the liquor manufacturer. Under products liability law, a twentieth
century invention, a basic tort element is lopped off. In order to recover damages, a plaintiff must establish that the product contained a "defect" which injured him but need not prove any negligence on the part of the manufacturer. This is the theory underlying the highly publicized cases against asbestos manufacturers, cigarette companies, and manufacturers of the drug DES, all of whom have argued that they had no idea their products were dangerous (if, in fact, they were).

By ignoring a basic legal principle, products liability law shifts injury to a "deep pocket" when no one is at fault. The law properly concerns itself only with wrongdoing, not with redistributing costs where no party has done anything wrong. That is, the law does not properly take account of injuries suffered in the normal course of living or social interaction where there is no culpability. Purchasers have a right to

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expect manufacturers to act with due care, but they are not entitled to omniscience or omnipotence. Despite the exercise of due care, products may be discovered to be dangerous years after they were sold; the loss in such a situation should remain where it falls.

As products liability law now operates, questions concerning the existence of a "defect," the causal connection between the defect and the injury, and the plaintiff's awareness of the "defect" are issues that normally go to the jury and are not resolved on summary judgment, leaving the way open for a war of dubious "scientific experts" and for juries to decide - on any basis they wish - who should bear the cost as between guiltless parties.

Two similar cases are pending in Washington State courts.


Recently, Stephan Kinsella, a TAFOL law student member reported observing a display at Louisiana State University Law School's law library concerning "animal rights." He noticed that it contained no materials challenging the animal rights movement. Mr. Kinsella convinced the library to include in its display anti-animal rights literature as well. Here is one case in which the field was not left to the opposition.

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On April 23, 1989, Dr. Leonard Peikoff lectured on "Certainty and Happiness: Achieving Success in Thought and Action" at The Ford Hall Forum. Prior to the lecture, The Intellectual Activist hosted a gathering, which was attended by several TAFOL officers. Their presence was announced by Dr. Michael Berliner of The Ayn Rand Institute. This announcement generated a great amount of interest. As a result, two lawyers, one law student, and seven associate members joined TAFOL. TAFOL's membership now includes thirty-three lawyers, fourteen students, and twenty associate members.

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TAFOL members will shortly be informed by bulletin of the times, dates, and locations of the activities TAFOL will sponsor at The Jefferson School's 1989 summer conference to be held August 6 through 20 in San Diego.

TAFOL welcomes Tom Bowden as the Newsletter's new Production Editor. Tom practices law with the Baltimore, Maryland law firm of Blum, Yumkas, Mailman, Gutman & Denick, P.A. Dee Tagliavia has assumed overall editorial responsibility for the Newsletter. All correspondence pertaining to the Newsletter and any articles submitted for consideration should be sent to: The Association for Objective Law Newsletter [address omitted].

It is the intention of the officers of TAFOL to sign TAFOL's name from time to time to writings which, in the opinion of TAFOL's officers, further TAFOL's goals and which may be politically charged. These include amicus briefs, position papers, letters to the editor, and advertisements such as the Rushdie advertisement published in The New York Times by the Ad Hoc Committee for the Defense of the Free Mind.

Copyright 1989. The Association for Objective Law. All rights reserved. Reproduction in any form without permission prohibited.