"In the judgment of lawyers [check] who have examined the facts of the disaster in recent years, it also seems likely that had the damage cases been conducted according to today's standards the club and several of its members would have lost. [Heh-heh-heh. Swine Gilders.] It is even conceivable that some of those immense Pittsburgh fortunes would have been reduced to almost nothing. [Reduce 'em to below nothing!]What the repercussions of that might have been is interesting to speculate. Possibly it would have delayed, perhaps even altered significantly, the nation's industrial growth." [EEECK!]-The Johnstown Flood, David McCullough, 259.
Johnstown, we thank you, all of us thank you, the nation thanks you for your enormous sacrifice...That these dead shall not have died in vain. That there shall be a new burst of gilding and that government of the brains and drive, by the brains and drive, for the brains and drive shall not perish, etc., etc. and etc.
That is not exactly the choice which David McCullough poses to us, he poses a hypothetical choice if
strict liability had been the American civil law's standard for liability at the time of the Johnstown
Flood but it's pretty close to that! What is the "cash value" of those 2,209 lives? That is the "bottom
line" question in American civil law. That is civil "justice!" In 1889 (and for a short time thereafter)
the answer to that question was, "Nothing." Johnstown's dead were "worth" nothing in American civil law because only the corporation could be held liable for a deadly corporate "product," not the individual persons who formed the corporation. To prevail one wronged by the corporate product had to prove "by a preponderance of the evidence that the corporation had been negligent. The persons who formed the corporation were insulated from liability unless they were personally, individually, negligent. South Fork Fishing and Hunting Club, Inc. was capitalized at, i.e. it was only "worth," about $25,000. Forget what the individual members net worth was. That corporate "worth" works out to $11.32 per death. Forget injury, emotional trauma, property damage. So if you could show that SFFHC, Inc. was negligent, then in the "damages" phase of the trial you could expect to be awarded (on average) $11.32 per death.
What about the criminal law? People were killed by the negligence of someone or something.
Negligence is not a crime, wasn't then, isn't now. "Mere" negligent behavior is not criminal behavior. Adjutant General D.H. Hastings, military in-charge at Johnson stated publicly that the SFFHC alterations of the dam were a matter of "criminal negligence." Hastings rode that statement and his performance at Johnstown to the governorship of Pennsylvania but the criminal angle went no further. Because the Gilders were so powerful? Had judges and legislators in their pockets? Because legally negligence, to be criminal, must be "culpable," the equivalent of an intentional deprivation of life? Whatever the reason or reasons a criminal investigation never occurred.
American law, civil and criminal, is process-determinative not result-determinative. You take your case to the Justice Factory. We put it into the Justice Machine. It slices, it dices, and out from a nice, shiny pipe comes Justice. It doesn't matter if what comes out of the shiny pipe looks like shit and smells like shit, the fact that it has come out of that process means it's JUSTICE.
David McCullough thinks it was shit too. But David McCullough asks us, hypothetically, to consider whether we would have wanted the "strict liability" process to have been applied to the Gilders. Because if we do! although the lives of the Flood victims would have been "worth" more, "possibly," "perhaps," the nation would have been shit economically and we all would have been "worth" less.
McCullough does not choose between the choices he presents us, he invites us to choose (I hate when that happens.), probably because it's all hypothetical. What difference does it make? The way it was was the way it was, and the way it is..repeat.
Well, screw that.
I agree with everything McCullough wrote in that passage. The net worth of Andrew Carnegie alone, was $300-$400 billion. Throw in your Frick, your Frack, your Knox, your Socks--those cats were
loaded--and you know, $300 billion here, $400 billion there, pretty soon you're talking real money!
Perhaps Johnstown's victims of Frick and Frack would have been "worth" close to Frick and Frack
under strict liability. Those "hunkies," those "dagos," "wops," those uneducated miners and mill workers? Worth in the ballpark of Andrew Carnegie and Henry Clay Frick? Ahh, gotcha! They were worth as much. Politically,--one man, one vote, "We hold...self-evident...equal"--and morally, morally, they were worth as much. In a society, in an economic system, that was so, so different from the one at founding, where the changes of industrial capitalism were literally unimagined, where products were produced on a scale unimaginable and could cause mass casualties, in a society with those founding principles still, yet one that had made a joke of those principles, not less in economics, the rationale for strict liability was, partly, to recognize the facts of this new society, the mass production, the massive risk to the public, the distorted "worths" industrial capitalism had created, to recognize that we were a society still, not just 100,000,000 atomized individuals, a society, in which we shared, fortune and misfortune, success and failure, life and death, and strict liability gave legal force to this sharing of all, so that individual persons suffered a little less disproportionately, prospered a little more proportionately, so that those "worth" an inestimably small sum compared with their "betters," were legally recognized to be worth more than nothing. Nothing! The American legal system is process-determinative, it is not result-insulated. It recognized, belatedly, that the way it was produced shit and people weren't shit and it changed, the law changed. Perhaps, possibly, the nation's industrialization would have been delayed, significantly altered. The nation's. We all would have shared in that too. That is a better way. So say I.
strict liability had been the American civil law's standard for liability at the time of the Johnstown
Flood but it's pretty close to that! What is the "cash value" of those 2,209 lives? That is the "bottom
line" question in American civil law. That is civil "justice!" In 1889 (and for a short time thereafter)
the answer to that question was, "Nothing." Johnstown's dead were "worth" nothing in American civil law because only the corporation could be held liable for a deadly corporate "product," not the individual persons who formed the corporation. To prevail one wronged by the corporate product had to prove "by a preponderance of the evidence that the corporation had been negligent. The persons who formed the corporation were insulated from liability unless they were personally, individually, negligent. South Fork Fishing and Hunting Club, Inc. was capitalized at, i.e. it was only "worth," about $25,000. Forget what the individual members net worth was. That corporate "worth" works out to $11.32 per death. Forget injury, emotional trauma, property damage. So if you could show that SFFHC, Inc. was negligent, then in the "damages" phase of the trial you could expect to be awarded (on average) $11.32 per death.
Negligence is not a crime, wasn't then, isn't now. "Mere" negligent behavior is not criminal behavior. Adjutant General D.H. Hastings, military in-charge at Johnson stated publicly that the SFFHC alterations of the dam were a matter of "criminal negligence." Hastings rode that statement and his performance at Johnstown to the governorship of Pennsylvania but the criminal angle went no further. Because the Gilders were so powerful? Had judges and legislators in their pockets? Because legally negligence, to be criminal, must be "culpable," the equivalent of an intentional deprivation of life? Whatever the reason or reasons a criminal investigation never occurred.
American law, civil and criminal, is process-determinative not result-determinative. You take your case to the Justice Factory. We put it into the Justice Machine. It slices, it dices, and out from a nice, shiny pipe comes Justice. It doesn't matter if what comes out of the shiny pipe looks like shit and smells like shit, the fact that it has come out of that process means it's JUSTICE.
Nobody then (except the Gilders) not Johnstown people, not newspaper people, not writer people, nobody thought what came out of the pipes in the SFFHC suits was justice. Nobody now (except the Gildings), and add to the aforementioned, legal people, nobody thinks what came out of the pipes then was justice. It was shit then, it is shit now.
Well, screw that.
loaded--and you know, $300 billion here, $400 billion there, pretty soon you're talking real money!
Perhaps Johnstown's victims of Frick and Frack would have been "worth" close to Frick and Frack
under strict liability. Those "hunkies," those "dagos," "wops," those uneducated miners and mill workers? Worth in the ballpark of Andrew Carnegie and Henry Clay Frick? Ahh, gotcha! They were worth as much. Politically,--one man, one vote, "We hold...self-evident...equal"--and morally, morally, they were worth as much. In a society, in an economic system, that was so, so different from the one at founding, where the changes of industrial capitalism were literally unimagined, where products were produced on a scale unimaginable and could cause mass casualties, in a society with those founding principles still, yet one that had made a joke of those principles, not less in economics, the rationale for strict liability was, partly, to recognize the facts of this new society, the mass production, the massive risk to the public, the distorted "worths" industrial capitalism had created, to recognize that we were a society still, not just 100,000,000 atomized individuals, a society, in which we shared, fortune and misfortune, success and failure, life and death, and strict liability gave legal force to this sharing of all, so that individual persons suffered a little less disproportionately, prospered a little more proportionately, so that those "worth" an inestimably small sum compared with their "betters," were legally recognized to be worth more than nothing. Nothing! The American legal system is process-determinative, it is not result-insulated. It recognized, belatedly, that the way it was produced shit and people weren't shit and it changed, the law changed. Perhaps, possibly, the nation's industrialization would have been delayed, significantly altered. The nation's. We all would have shared in that too. That is a better way. So say I.
