Sunday, December 11, 2005

judicial system

Personally I think a more inquisitorial system of justice should be, in theory, better than the adversarial system. I think that the adversarial system has created a system where a particularly wealthy defendant is impossible to convict. As I have mentioned before if OJ and Milosevic can win or get even close to winning a trial then basically everyone is not guilty. Judges in theory should be able to provide a higher standard of expertise to solving of issues than juries could they also should be able to reach these conclusions faster and more efficiently.

Even in the civil cases the government should stand between the accuser and the defendant. In the USA in particular and to a lesser extend elsewhere, if someone commits a crime against you the degree to which you will be compensated depends on how much money they have. This is a stupid system because it creates inequity in the very act of trying to restore equity.

It is easy to separate the two systems - instead of taking money from the criminal and giving it to the victim you should just pay the victim a fixed amount depending on what it takes to generally restore them and then you charge the offender whatever you think it takes to discourage him from doing it again or to achieve whatever other objectives the punishment might achieve. The difference may be a profit given to the state or a loss. If you wish to encourage prosecutions you may make this new payment dependant on the discovery of an offender but it should NOT be dependant on their wealth as if an act of malpractice by a rich doctor is somehow more devastating than the same act by a doctor who gambled away most of his money.

Another thing I have a problem with is insurance against being sued. The system declares that there is a disincentive required to prevent people from doing certain negligent things, this is presumably to make them pay attention. that incentive is (or at least should be) set at a certain level so that people will take care and yet will not be scared away from a productive industry e.g. medicine). But insurance changes that balance AND creates inefficiency. If the laws are too harsh then they should be softer not insured against.

If they should he harsher the insurance may compromise the objectives of the negligence laws. The current USA (and other countries) system seems designed to compromise both the aid to the victim and the punishment of the offender by mixing them up. Most doctors take insurance because they think it is something to a large extent out of their control and if that is indeed the case then the punishment is either excessive or too readily given out (in the absence of insurance). For example why should a doctor be held responsible for a bad operation until proven innocent? He may be the most likely person at fault but you should still have to meet some minimum standards of proof just like with any other "crime". Either it is right the standard should be low and so it should be low for everyone or it is right it should be high and therefore high for everyone.

If someone sues for damages because of a blotched operation the offender should be equally discouraged from botching the operation no matter what insurance or money he might have.


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