the scale of law

Imagine if You Could Choose Who Gets to Sue You
By Joe Jarvis - August 23, 2018

Most people use the term fascist to describe any political beliefs they don’t like.

But the best definition of fascism that I have heard is the means of production being controlled, but not owned, by the government. This is in contrast to socialism where the actual machines, factories, etcetera, are owned and operated by the government.

Trying to remove government control over the economy is therefore quite clearly NOT fascist.

On the other hand, practically every government regulation, bailout, subsidy, or grant is on the fascist scale.

Crony capitalism, protectionism, corporatism: this is fascism. This is where the government intervenes in the economy to pick the winners and the losers.

For instance, Dodd-Frank was fascist legislation. It regulated banks in a way that disadvantaged smaller institutions and gave a boost to large Wall Street firms.

Fines that banks like Wells Fargo pay for their misdeeds are part of the fascist framework. The banks make billions from their misconduct, and the government makes hundreds of millions in fines. Everybody wins… except of course for the taxpayer and the bank customers…

Another recent example of fascism is the trend of governments extending sovereign immunity to non-government entities.

Sovereign immunity means the government gets to decide if you can sue the government. This is bad enough–what happened to the right to petition for a redress of grievances?

But perhaps even worse, and squarely fascist, is when the government extends its sovereign immunity to private businesses.

So imagine it. Someone tries to sue you, and the court asks, “Would you like to be sued by this person?”

“Umm… No?”

Private Hospital Gets Sovereign Immunity

Better look into what agreements your hospital has with medical schools. These relationships might extend sovereign immunity against medical malpractice.

Yes, the hospital might get to decide if you are allowed to sue it for medical malpractice.

Siding with the University of Miami, an appeals court upheld the constitutionality of a 2011 state law designed to shield some medical schools and doctors from liability in medical-malpractice cases.

A three-judge panel of the Third District Court of Appeal rejected a series of constitutional arguments raised by attorneys for plaintiffs who alleged malpractice by University of Miami medical school doctors working at Jackson Memorial Hospital.

The 2011 law extended sovereign immunity, a legal concept that generally shields government agencies from costly lawsuits, to private universities that reach agreements to provide services at teaching hospitals. UM’s Miller School of Medicine subsequently entered an agreement with the Miami-Dade County Public Health Trust, a government agency that operates Jackson Memorial.

Wednesday’s ruling involved two lawsuits stemming from incidents in 2012 and 2014 at Jackson Memorial.

Did doctors in these cases actually commit malpractice? We’ll never know because it will never go to trial. These people harmed by the hospital will never have their day in court because the hospital is allowed to reject lawsuits against it!

Is this socialized healthcare? Or is this fascist healthcare?

It’s hard to tell. The government owns the trust that administers the hospital. But patients are still expected to pay, and the doctors could hardly be considered government employees.

Yet the government has extended its power to protect the doctors and the hospital against legal action. Just like the government, this hospital is above the law.

But how were these people to know this when they went in for their medical procedures, that they would have absolutely no redress if something went wrong? Generally, when dealing with private entities, it is understood that there are legal consequences for doing wrong.

But seriously, if you could just say, “Nope!” how many people would you allow to sue you?

Nice Try…

Then there are always the cases where a company will attempt to access the protectionist fascist system, but get denied.

Sovereignman has the recap:

Generic drug makers sued drug maker Allergan in an attempt to change its patent terms to allow competition.

Getting creative, Allergan transferred its patent to an Indian tribe.

The tribe then attempted to claim sovereign immunity to shield itself from the lawsuits. Sovereign immunity means the government gets to decide if they will allow someone to sue them.

Unfortunately for Allergan, the court ruled that the tribe cannot block the lawsuits.

While the Indian tribe may be able to block civil lawsuits using sovereign immunity, the court said that these patent suits are more akin to agency enforcement.

The lawsuits aim to trigger a regulatory review of the patent so that other companies can manufacture generic versions.

They will be allowed, even though an Indian tribe now owns the patent.

They must not know the right people… Or perhaps there is a stronger fascist faction backing the other party…

That’s how things work in fascism. It is a struggle for political power. The market has little to do with success. The customer doesn’t get to choose or influence the outcome.

That is why the free market is the ultimate ideal. It gives the individuals the power to regulate. Everything else is some degree of fascism.

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