Yes, it takes an English comedian to actually draw America's attention to its own cynical brutality:
Both the BBC and the German media (g) have reported on the $23.6 billion verdict a Florida jury handed down against R.J. Reynolds tobacco company for damages she suffered after her husband died of lung cancer. The jury found that R.J. Reynolds had purposely concealed the addictive and harmful nature of smoking. Most of the $26 billion is in punitive damages, which can be awarded in Florida if the jury finds that "[t]he defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct."
These sorts of stories come out a few times a year, and are always covered by the German media. They serve an important function for the German journalistic class: they instruct obedient German news consumers that the American jury system is a crazy lottery in which ignorant, envious bumpkins are given free rein to milk large corporations on behalf of other ignorant, envious bumpkins.
By implication, therefore, these stories support the Panglossian narrative of German superiority. After all, am deutschen Wesen soll sich dereinst die Welt genesen -- the German way will heal the world. There are no juries in German civil trials, nor are there any punitive damages in the American sense. German judges award damages according to fixed schedules, and the amounts are smaller than American courts.
To apply the necessary corrective: No, the tobacco company will of course never have to pay the $23.6 billion verdict. An appeals court, following rules laid down by the American Supreme Court, will reduce it to a tiny fraction of that size. Punitive damages awards are extremely rare in American courts, and usually modest in size. A recent study sums up the situation:
Contrary to popular myth, punitive damages are rarely awarded.
Most punitive damage awards are modest in amount.
Of the 45 states that allow punitive damages in this country, at least one-third have enacted some form of cap, or limit, on the ability of judges and juries to award punitive damages. Over 30 state legislatures have made it more difficult for injured consumers to prove punitive damages by raising the standard of proof required for awarding them. Several states order victims to pay a portion of punitive damages into state-designated funds. Other states require or permit bifurcated trials where the injured person is forced to essentially try a case twice, first proving liability and second, arguing the size of the award. And in some states, juries are prevented from deciding the amount of a punitive damages award -- only the judge is permitted do that.
That's been today's corrective to the German media.
Whitney Kimball looks at why American visual artists don't profit from resales the way European artists do:
U.S. copyright law protects “published” works, and a work of art is not “published,” simply made and sold—so once a work of art is out of an artist’s hands, the future profits, too, are gone. This system is unique to the art world; in other fields, artists are understood to have the right to a share of the proceeds of their works long after the works are first made....
...Meanwhile, artist resale royalties (or droit de suite) have long been a basic right in 70 other countries; France has had such a system since 1920, and the European Union standardized it across the continent in 2001. They’re so common that the U.S. Copyright Office specifically revised its position on artists’ royalties last year, recommending that Congress revisit the issue.
Now, Congress has that chance: the recently proposed American Royalties Too (A.R.T.) Act, a bill which would give artists a 5 percent cut of the profits when their works are resold at auction. The bill has its flaws: It applies only to auctions and not private dealings. But 5 percent is also a slim and fair share, compared with the auction houses’ 12to 25 percent buyers’ premiums—though even 5 percent looks too fat to slip under the door. An earlier version of the bill, the Equity for Visual Artists Act, failed to attract a single co-sponsor in 2011, and over the past few years, Christie’s and Sotheby’s have been raining upward of $1 million on lobbying against royalties. At this writing, govtrack.us gives the A.R.T. Act a 2 percent prospect of being enacted.
It’s telling that in more than 70 countries that have now adopted some form of artist royalties, the only major debate has come from the U.K., which has the second largest art market after the U.S., and adopted artist royalties in 2006. When droit de suite was proposed for the U.K. in 2000, the British Art Market Federation forecasted implosion: Even a 4 percent royalty could send thousands of jobs overseas, they warned, and affect five times as many sales as covered by droit de suite. The alarms managed to stall the implementation of droit de suite in the U.K. until 2006. But years after implementation, studies have shown that the law barely affected sales.
If that’s any indication, artists’ royalties don’t harm the market. They can provide some measure of security to artists, especially later in life; they are common most everywhere in the world; and they are recommended by the U.S. Copyright Office. But all this is beside the point. America forgot about a basic rights law, and for many, the conversation comes a lifetime too late.
The U.S. Copyright office report linked to in the article is a model of thorough yet readable legal analysis. Among other things, it recounts that the origin of the droit de suite was a French engraving (from p.4, edited for clarity):
The resale right, or droit de suite, as it is often called in Europe, derives from a bundle of privileges commonly and collectively known as “moral rights.” Where other moral rights assure attribution (paternity) or protect against mutilation (integrity), the resale right provides visual artists with an opportunity to benefit from the increased value of their works over time by granting them a percentage of the proceeds from the resale of their original works of art. France was the first country to implement droit de suite in 1920, after a widely published lithograph by artist Jean-Louis Forain poignantly portrayed “starving artists.” ... Forain’s lithograph, which depicts two impoverished children looking into an auction house window where a painting, apparently created by their father, is on display for a high price, with the caption “Un tableau de Papa!” (“One of father’s paintings!”)
Next Monday, I will be participating in an international panel discussion at Harvard on capital punishment with a number of other colleagues in the field, sponsored by the Harvard Institute for Global Law and Policy and the Real Colegio Complutense at Harvard.
It's free and open to the public, so drop by if you're in the area and the subject interests you. The full flyer in .pdf format is here.
Adam Liptak of the New York Times recently noted and lamented the fact that the decisions of the American Supreme Court are increasingly decided on explicitly partisan grounds:
The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.
“An undesirable consequence of the court’s partisan divide,” said Justin Driver, a law professor at the University of Texas, “is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes. If that perception becomes pervasive among today’s law students, who will become tomorrow’s judges, after all, it could assume a self-reinforcing quality.”
Presidents used to make nominations based on legal ability, to cater to religious or ethnic groups, to repay political favors or to reward friends. Even when ideology was their main concern, they often bet wrong.
Three changes have created a courthouse made up of red and blue chambers. Presidents care more about ideology than they once did. They have become better at finding nominees who reliably vote according to that ideology. And party affiliation is increasingly the best way to predict the views of everyone from justices to bank tellers.
The lefty in me wonders what all the fuss is about. Commentators such as Driver posit a politics-free space of legal analysis which used to exist and has been eroded in the past few decades, and that this erosion is a bad thing. You can doubt each proposition; perhaps the Supreme Court has always been a place of political contention obscured by a thick veneer of procedural legalism, and we're all better off now that the veneer's been washed away.
But this seems a bit glib. The increasingly naked partisanship of American Supreme Court Justices is almost certainly a Bad Thing, and damages the reputation the United States internationally. Further, it's hard to see it changing anytime soon: given that (1) there are only 9 spots on the Supreme Court; (2) the ideological balance is razor-sharp, and (3) each judge literally serves for life, any President who defected from the strategy of appointing reliable votes for his party would face a huge backlash: 'Why did you appoint that squish when you could have appointed someone more reliable? Do you think the next president from the opposite party is going to return the favor? Of course not -- congratulations, you've just changed the composition of the nation's highest court for the next 35 years.'
Germany doesn't have problems this acute, since German Federal Constitutional Court (FCC) judges serve only 12-year terms. In Germany, seats on the Federal Constitutional Court are allocated according to a semi-secret agreement between the two largest political parties, the CDU and the SPD. As Maximilian Steinbeis points out in a recent entry. The judicial Selection Committee of the German Parliament is formally assigned to choose new FCC judges, but the real decision is made out of public sight long before the Committee votes. Right now, an 'SPD-associated' judge is about to retire, and the SPD gets to choose her replacement. They actually carried out a sort of audition for potential replacements. But picking judges through informal backroom agreements has its own problems (my translation):
I was always for a more public and transparent procedure for choosing FCC judges. The SPD parliamentary group's procedure thus conforms to the trend: choosing FCC judges is getting more political. The expertocratic tradition that has dominated until now -- in which the search for candidates is in the hands of tight-lipped and well-connected legal politicians do thorough background checks, conduct many, many confidential discussions, and then filter out the One (and for God's sake no one else!) to present to the parliamentary party behind closed doors -- this sort of thing no longer looks good.
Therefore, the plan to have judges ... chosen no longer by the intransparent Selection Committee but chosen in a plenary session of the Bundestag (g) seems like an appropriate solution. Of course, nobody wants the process to become as politicized as it is in the USA, and therefore the vote should happen without public speeches. Even so, we will in the future know -- for better or worse -- exactly how much support each Judge had when he or she assumed office. It remains to be seem how that might affect the atmosphere in the chambers of Karlsruhe.
Steinbeis isolates the central problem here: transparency leads to political accountability, and that's precisely what you want to limit when picking judges. Until the late 1960s, the American system managed to sustain the ideal (illusion?) of neutral criteria for picking judges, but as hearings became increasingly public, the judge's political profile increased to the point where it's now dominant. And that's why Steinbeis cites America not as a model, but a cautionary example.
I gave an interview to Constantin van Lijnden of the Legal Tribune Online concerning the latest developments on the issue of lethal injection in America here (g).
I was quoted a few times in this Legal Tribune story (g) about the Zimmerman case, which makes the point that, if you consider all the facts surrounding the shooting of Trayvon Martin, a German court would likely have acquitted George Zimmerman as well. After analyzing the case in some depth, the author speculates about why the German media has been so consistently wrong about the case (my translation):
Where does the mistaken impression come from that American self-defense law is so much more permissive than German law? For one thing, ignorance of the foreign legal system, combined with national cliches which assign Americans the role of pistol-wielding cowboys. The circumstances of the case certainly lent themselves to this interpretation at first glance.
No, that's not a quote from me, but I could hardly agree more. Coverage of the Zimmerman case in much of the mainstream German media has been marked by truly epic incompetence, smugness, and East-German style moralizing tendentiousness.* So many German journalists desperately wanted to believe that an all-white jury set Zimmerman free after he gunned down a young black man for no reason. To this end, they have resolutely ignored anything that complicates that narrative (why let the facts get in the way of a good story?), implicitly reassuring their readers that in Germany, the best of all possible worlds, such a horrible scandal could never take place.
Much of the coverage has featured in-depth interviews with protesters venting their opinions about the case, as if that were any way to shed more light than heat. Whenever I see German news teams broadcasting completely uncritical interviews with American protesters, I always feel a temptation to go to Occupy Frankfurt, interview some of the ragamuffins and leftist extremists camping out there, and broadcast them on German television until every German viewer is convinced their country is a fascist police state with massive unemployment.
Now, before this post gets any more ranty (but that was pretty fun), I'll just make a few points before moving on from this topic forever:
Zimmerman would probably have also been acquitted under German law. German law also has a 'stand-your-ground' principle, called (in various wordings) 'Recht muss dem Unrecht nicht weichen' -- someone who is not doing anything illegal is not obliged to retreat in the face of an illegal attack. The response to the threat must be proportional, but the judge will take into account the means available to the attacked person when judging proportionality. You cannot immediately respond to a punch with a knife, for example, but if you are punched repeatedly and you have a reasonable fear of severe bodily harm or death and cannot adequately defend yourself with your fists, you may then use the knife. German law also allows you to use a gun in these circumstances. If you are being physically attacked, have a reasonable fear of severe injury or death, and the gun is the only realistic means you have to stop the attack, you may use it to defend yourself. You are ordinarily expected to yell a warning or fire a warning shot, but the law will not require you to do these things if the circumstances don't allow for it. As does American law, German law realizes that a physical fight is a chaotic event and that you cannot expect people to exercise careful, detached judgment in the middle of one.
Of course, spinning out a counterfactual about how a case would have played out in another legal system is only a mental exercise, but I think that Zimmerman would have had a good chance under German law. He would have argued that (1) he was doing nothing illegal at the time of the incident (following someone isn't a crime, nor -- for the purposes of this hypothetical only -- is owning a legal, licensed concealed weapon); (2) Martin started the physical confrontation; (3) Martin got the upper hand, forced him to the ground, and punched him and hit his head against a concrete sidewalk; (4) he was unable to defend himself with his fists against the continued beating and feared serious injury or death; (5) was not in a position to yell a warning or fire a warning shot, since he was lying on the ground being punched; and (6) fired the gun in self-defense.
Of course, it should go without saying that the death of Trayvon Martin, like the senseless death of any 17-year-old, is a tragedy (in the genuine sense). Martin was where he had a right to be and was doing nothing wrong when some guy began to follow him for no reason he could discern, quite possibly just because he was black. It appears Martin may have overreacted out of fear or anger, but it's hard not to sympathize with him. If Zimmerman hadn't been carrying a gun, it's likely nobody would have died. But still, this case is simply not a convincing symbol for the very real, very problematic racial and class disparities in the U.S. criminal justice system. In fact, it's not even a symbol of how 'different' American justice is from German, or European justice. The fact that so many (not all, but many) German journalists have tried to make these points by using a selective and distorted version of the case is yet another serious black mark on the German media.
There's been a lot of banter about 'Stand your Ground' in the German media lately. Many of the legions of lazy German journalists seem to be convinced that it allows Americans to simply begin firing at anybody they consider to be suspicious-looking. In fact it means only that if someone else begins a physical confrontation with you, you are not under an obligation to retreat from it. Instead, you can use force to defend yourself -- as long as that force is reasonable in relation to the danger.
Is it different in Germany? Not very, argues GJ commenter Paul:
Germanys self-defense law is very generous to the self-defendant. "Recht muss vor dem Unrecht nicht weichen" is a time tested German legal principle and sounds suspiciously similar to stand your ground. It covers the use of deadly force to prevent the stealing of relatively unvaluable property. Many Germans don't undstand that and are foccussed on snippets from American movies and debates. You are right to point that out.
This piece in Slate makes a similar point:
English common law imposes a duty to retreat whenever it is safe. In continental Europe, the duty applies only when the defender provokes the attack, or when the attacker doesn’t understand the situation. (Europeans must retreat from young children with guns, for example.) Nor is there a general duty to retreat in countries like Japan and Argentina, which derive their criminal-law systems from Europe. Even England, originator of the duty to retreat, repealed the doctrine in 1967 by statute. Defenders of the European system argue that imposing a duty to retreat may prevent the attack on the victim’s life, but it permits an attack on his legal rights—the right to be in a public place, the right to move freely, etc. By passing the “stand your ground” law, Florida brought its laws closer to those of Europe. Otherwise, the U.S. is in the minority in having, within some states, an explicit duty to retreat.
It’s not entirely clear how much this doctrinal division matters in practice, though. There may be a practical duty to retreat under many circumstances in Europe, even if the law doesn’t explicitly say so. That’s because the law also says you can use deadly force only when it’s necessary to avert an attack, and the force must not be grossly disproportional.
In practice, the mainstream view of when deadly force should be permissible seems to vary minimally between countries. When a country’s laws produce an outcome that diverges from a standard people are comfortable with, the doctrine ultimately yields to the popular intuition. Here’s an example to illustrate that point. In 1920, a German orchardist was tending to his trees when he happened upon a thief, who immediately fled. To thwart the theft, the orchard owner shot and killed the thief. Arguing that “right need never yield to wrong,” the German court acquitted the shooter. Public questioning of that absolutist doctrine, however, eventually led to the adoption of the proportionality rule.
So, if Zimmerman provoked the attack in the Martin case, he might be under an obligation to retreat. But it's actually not clear who provoked the physical confrontation -- Zimmerman claimed that Martin doubled back to confront him and started the physical fight, and there's some evidence that points in that direction.
It's also possible that German law would see the use of a firearm as a disproportionate response to an attack by fists. Commenter Paul believes Zimmerman would have been convicted of manslaughter in Germay for this reason, and the argument is sound. However, it's a bit hard to evaluate, since (1) Germans aren't allowed to carry legal firearms around with them, so the question rarely comes up, and (2) there are quite a number of beating deaths in Germany every year. When someone is actively pummeling you, it's not far-fetched to argue that the next blow could have rendered you unconscious and unable to defend yourself, so you felt a need to stop the beating at all costs, even with the use of a deadly weapon. Much would depend on the individual circumstances of each case -- but then again, that's precisely what the jury in the Zimmerman case considered, for 16 hours, before they reached their verdict.
Here's an interview I gave to Bavarian Radio yesterday (in German) which was broadcast this morning. My legal analysis of the Zimmerman case, plus a mild howler.
In this post I clear up a misconception that I've encountered among many Germans, who seem to think that Zimmerman got out of the car, followed Martin, and then executed him in cold blood for no reason. The very fact that Germans believe that this sort of thing would go completely unpunished in the United States shows how grossly distorted the German image of America can be.
As the photos above show, there was a physical confrontation between Martin and Zimmerman before the shot was fired. Zimmerman's injuries were not life-threatening, but they do show that there was a chaotic, physical fight before the shots were fired. The jury found that Zimmerman fired his gun because he reasonably feared, in the precise words of Florida law, 'imminent death or great bodily harm to himself'. The fact that Zimmerman provoked the confrontation by following Martin was only of secondary relevance from a legal perspective, whatever you think of it from a societal perspective.
This is not to say that I endorse Zimmerman's actions. It's a simple plea for Germans to inform themselves more fully than their own media typically does before making a judgment. And if you think that German law on self-defense is very different, you might want to read this court decision (g) in which a German court ordered the complete release of a member of the Hell's Angel's motorcycle club who shot and killed a German SWAT-team member without warning (except for yelling 'fuck you') as the officer was trying to enter his apartment and conduct a search. The court found that since the Hell's Angel's member was in his home and feared for his life because the Bandito gang wanted to kill him, his mistaken assumption that the break-in was being done by the Banditos, coupled with the fluid and unpredictable situation, allowed the biker to immediately shoot to kill without firing a warning shot or announcing his intentions.
Of course there are differences between the two cases, but they certainly show that German law also permits you to use deadly force to protect yourself if you believe you're under threat -- and that the law recognizes that in a fluid, fast-moving situation like a physical confrontation, you cannot expect participants to obey all the niceties of civilization.
Books I've written or translated