#2 Summer 1989
1989 page 1
AN ABSOLUTE RIGHT
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.
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?
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?
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.
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
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.
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.
1989 Page 2
Plafker - Vice-President
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.
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.
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."
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
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.
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."
1989 Page 3
CRITICAL LEGAL STUDIES
You may have
heard of Critical Legal Studies in connection with a 1988 faculty
rumble at Harvard. What is Critical Legal Studies?
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."
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."
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:
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
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
transcendent set of values or ideals - and that its mythologizing and
legitimating efforts are fundamentally evil.
1989 Page 4
So much for
any principled opposition. TAFOL will keep an eye out for notable
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.
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.
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.
has been declared a partial victory for the Keller camp; in fact,
it is a total defeat. The restriction placed on the State Bar
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.
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 .
KOZINSKI - RIGHT AGAIN
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
#2 Summer 1989 Page 5
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."
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.
tort layers additional and unlimited damages on top of a cause
of action for breach of contract. Judge Kozinski comments:
in the Cloud Cuckooland of modern tort theory could a case like
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
seeking punitive damages for maliciously refusing to return
calls or adopting a condescending
tone in interoffice memos.
notes that the new tort provides a prime
opportunity to subjectify the law:
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:
enterprises [cannot] be expected to flourish in a legal atmosphere
where every move, every innovation, every business decision must
against the risk of exotic new causes
of action and incalculable damages.
. . . .
to enter into contract - to adjust one's legal relationships
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
what's best for us. The recent tendency of judges to insinuate
of action into relationships traditionally governed
by contracts is just such overreaching.
urges reconsideration of the 1984 decision giving life to this
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."
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
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.
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."
#2 Summer 1989 Page 6
An insurance policy could be cancelled only for nonpayment of premium,
fraud or material misrepresentation, or a substantial increase in the
hazard insured against.
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."
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.
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
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.
been (accurately) hailed as a victory for Proposition 103. The
opinion adopts every principle that has been used to violate
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.
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.
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.
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).
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
#2 Summer 1989 Page 7
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.
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.
cases are pending in Washington State courts.
Stephan Kinsella, a TAFOL law student member reported observing
a display at Louisiana State University Law School's law library
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.
* * *
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
a gathering, which was attended by several TAFOL officers. Their
presence was announced by Dr. Michael Berliner of The Ayn Rand Institute.
announcement generated a great amount of interest. As a result, two
lawyers, one law student, and seven associate members joined TAFOL.
now includes thirty-three lawyers, fourteen students, and twenty
1989 Page 8
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.
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
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.
1989. The Association for Objective Law. All rights reserved.
Reproduction in any form without permission prohibited.