0:00:00.0 Speaker 1: We'll hear argument next the number 86-492, Delbert Boyle versus United Technologies.

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0:00:12.7 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Boyle v. United Technologies Corporation, or UTC. The case centers around a subsidiary of UTC that was commissioned to build a helicopter for the military. The helicopter was poorly designed leading to an otherwise preventable death of a Marine. His parents sued over the faulty design, but...

0:00:40.5 Speaker 3: The US Supreme Court handed President Reagan and his administration a victory today. The court ruled five to four that military defense contractors generally cannot be held liable for defects in their products.

0:00:54.0 Leon: The result is that government contractors now have even less incentive to make products safer. This is 5-4, a podcast about how much the Supreme Court sucks.

[music]

0:01:09.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left us strained and dying like an insolvent venture capital bank. I'm Peter. I'm here with Rhiannon.

0:01:21.0 Rhiannon: Hi.

0:01:22.3 Peter: And Michael.

0:01:23.0 Michael: Hey, everybody. Very topical.

0:01:27.2 Rhiannon: Very topical.

0:01:27.3 Peter: Yeah. We're recording this right after Silicon Valley Bank sort of started to collapse, so who knows what the next week between this recording and the publishing looks like. It could be that society has completely collapsed and there's nothing left.

0:01:42.8 Rhiannon: Silicon Valley Bank. Fake bank name. Like, come on.

0:01:48.2 Peter: Yeah, no, it's not real.

0:01:48.9 Michael: Fake bank for a fake place.

0:01:50.6 Rhiannon: It wasn't real, y'all.

0:01:52.6 Michael: You're supporting a fake industry.

0:01:54.6 Rhiannon: Yeah.

0:01:54.8 Peter: Yeah. You want to talk real industries? Let's talk about podcasting, [laughter] the business of podcasting. Today's case, Boyle v. United Technologies Corporation. This is a case from 1988 about a certain type of corporate negligence. United Technologies Corporation is a military contractor involved with the manufacture of helicopters, military helicopters. One of their helicopters being used by the military, crashed into the ocean during a training exercise in Virginia. One of the pilots survived the initial crash but drowned when the helicopter's escape hatch malfunctioned, preventing his escape. So his family brought a product liability action. They sued the corporation for negligence. But the Supreme Court in a five to four decision threw the case out because in their view, military contractors should be immune from liability in cases like this.

0:03:02.2 Rhiannon: It's a Scalia opinion. Our boy, our dead and rotting boy.

0:03:08.1 Michael: Right. And it's important to note when Peter says in their view, contractors should be immune from liability. As you will hear, this is not the Constitution. This is not a statute.

0:03:21.8 Peter: Right.

0:03:22.9 Rhiannon: Nope.

0:03:23.0 Michael: This is just Scalia and the conservatives being like, yeah, fuck them.

0:03:28.6 Rhiannon: Yeah. [laughter] That's it.

0:03:30.1 Michael: To the troops and their families.

0:03:32.5 Peter: Yeah. This one's all vibes. It's top to bottom vibes.

0:03:35.0 Rhiannon: Yeah. So let's jump in pretty basic set of facts here. It's not like a really long story but it's definitely really fucking sad. In April 1983, a Marine helicopter pilot named David Boyle was killed in a helicopter crash during a military training exercise off the coast of Virginia Beach, Virginia. Now Boyle, like Peter said, he actually wasn't killed on impact. He survived the initial crash part. What killed him is a defective design in the helicopter's escape system. So the escape hatch was designed to open out instead of in. So if you're thinking about this for more than like two seconds, I think it's sort of obvious. Like it's a problem that people know about, for instance, when cars crash into water, when the door is designed to open outwards, like it is in a car, it can't do that underwater because water pressure keeps it closed. You can't push it out.

0:04:30.0 Peter: Yeah. I've been told like, oh, you have to wait until the water is like up to your neck and then you try to open the door. I'm like, yeah, I'm sure I won't be losing my fucking mind as I patiently wait on the bottom of like the floor of a lake.

0:04:44.1 Rhiannon: Yeah, as I patiently and calmly wait. Well, and that's why they have special tools to like get bust out of a window of a car if you're inside a car that's sinking in water. Like this is kind of known and it's known in 1983, we should say. So on top of that, that design defect in the helicopter, the escape hatch handle was also obstructed by other equipment. So there were even issues like accessing the handle should one be able to push it out to escape in an emergency. So Boyle drowned in that helicopter because of a design flaw in the helicopter that he was piloting. The company that designed that helicopter is United Technologies Corporation, but it's even more specifically a division within UTC called Sikorsky. So Boyle's dad sued Sikorsky under state law in Virginia, which allowed for this kind of lawsuit.

0:05:42.0 Rhiannon: Basically the same idea legally as when someone sues a corporation for making a defective product that hurts somebody. Like Ikea made shelves that fell over too easily. They got sued because kids got hurt. Lawnmower manufacturers back in the day were making lawnmowers without guards that protected people's hands or feet from blades. They get sued for those harms. This is product liability. So a Virginia jury found for Boyle's father and awarded a verdict of $725,000. But Sikorsky, the company, appealed to the Fourth Circuit, and the Fourth Circuit overturned the trial court result saying that under federal law, Sikorsky and United Technologies Corporation were shielded by something called the Military Contractor Defense, which we'll talk about in a second. Now Boyle's father appealed from the Fourth Circuit decision, and that's how we get to the Supreme Court. That's how we get to Scalia with the pen here.

0:06:42.1 Peter: So let's talk about the law a bit. First, in the background here is this concept of the government contractor defense. And it's important to recognize that this is not in a statute or anything like that. It's something that courts essentially conjured up in the 1980s, where for various reasons they thought that government contractors should be immune from most tort actions. Different courts provided different reasons for this, and we'll talk about what reasoning the Supreme Court latches onto here. But there's sort of this background where appellate courts have been finding immunity for government contractors over the past few years. So this is a product liability case at its core, which is just a matter of state tort law. Similar to, like we mentioned, how you might sue any company that manufactured a defective product of any type. The only real difference is that the company in question is a military contractor. Now there are no state or federal laws that say you can't sue a military contractor for negligence, nor are there any laws that might imply that you can't sue a military contractor for negligence.

0:07:56.0 Rhiannon: There's no vibes here in the law.

0:08:00.9 Michael: No there's nothing.

0:08:01.0 Rhiannon: Either way.

0:08:02.3 Peter: Right. And yet Antonin Scalia, joined by four justices of the Supreme Court, held that you can't sue a military contractor for negligence in this situation. So let's walk through it. There's a threshold question of why this is even a matter for a federal court. Like this is a product liability lawsuit being brought under state law. Matters of state law generally going to be confined to state courts. But what Scalia says is that this involves federal contractors and is therefore a matter of uniquely federal interest. And therefore the state law can be effectively overridden. It's what we call preemption, the preempting of state laws by federal law. Now usually courts only do this where a federal law says expressly that it overrides any conflicting state laws.

0:09:00.5 Peter: But here, Scalia is doing it based on his general sense that like this is an area of law that's important to the federal government. This is not totally unheard of. There's a doctrine called implied preemption and it exists for a reason. It's basically like if the federal government passes laws regulating a certain industry, courts will often hold that states cannot pass their own laws regulating those industries because the federal government has sort of staked their claim on that area of the law. But this is a particularly fuzzy use of the doctrine because the only real basis for it is Scalia's sort of general vibe that this is something the federal government would be interested in controlling. There's no particular reason to believe that anyone in the federal government thought that states couldn't pass laws like this or that...

0:09:52.4 Rhiannon: Yeah, Congress hasn't acted here.

0:09:55.5 Peter: The federal preemption of state laws is a pretty convoluted area of our law. But this is an outlier even by the sort of already gray standards of those doctrines. So now we get into the case itself, the substance of it. The basic reasoning the majority uses here is a little roundabout. It involves some technical analysis of the Federal Tort Claims Act, which is the law that allows you to sue the federal government for damages in certain cases. But if you cut through the noise, they end up making a couple of relatively simple points. First, they say had the lawsuit been brought against the federal government, the government would be immune because it is generally immune from suits for the discretionary acts of its employees which Scalia says would include things like approving the details of a technical contract concerning helicopter parts. And second, they essentially say, look, this wasn't a manufacturing defect. It's a design defect.

0:11:00.4 Rhiannon: Oh, okay.

[laughter]

0:11:04.3 Peter: The escape hatch of the helicopter did not work effectively but that wasn't because of a mistake made during manufacturing. The hatch was up to specification. The government agreed to those specifications. It's just that those specifications were faulty to begin with.

0:11:22.1 Rhiannon: Yeah. The door opened the wrong way.

0:11:25.2 Peter: Yeah. And that's sort of the core distinction that the majority makes here. They're saying, look, the contractor provided the specifications. The government accepted them, even if they were flawed. So in a sense, this is really the government's fault. And then on top of that, you have this...

0:11:44.0 Rhiannon: But...

0:11:44.4 Peter: And then on top of this, you have the idea that the government would be immune from liability. And so Scalia says, well, because the government would be immune from liability here, the contractor should be too. And it's that sort of like little logical leap that is at the center of the opinion here. Scalia deduces that the government is immune from liability and then says, well, so the contractors they work with should be too. But like federal law does not say that. There's no law providing that military contractors are subject to the same immunity as the military itself. And there are a lot of laws that govern military contractors.

0:12:26.0 Rhiannon: These are separate companies apart from the government.

0:12:28.4 Peter: So Mr. Textualism over here is just like throwing his own addendum into federal law taking the immunity that applies to the federal government and just gifting it to contractors.

0:12:41.8 Rhiannon: Yeah, totally.

0:12:42.3 Michael: I felt like I was going crazy reading this opinion because it was like every few paragraphs he would be like, well, look, the military contractor immunities apply in this some scenario that's not analogous to the case. And then he'd be like, but it's kind of close. And then he'd be like, and it applies in this scenario that's also not analogous to the case, but it's kind of close. And it was like, I've been trying to think of a good analogy for this. And it's like throwing darts at like a dartboard that looks like a clock where the bullseye is right in the center. And you hit like the 12, the 3, the 6, and the 9, then you're like, fucking bullseye, man. [laughter] It's like, no, no, none of those were bullseyes. What are you talking about?

0:13:27.3 Peter: They average out to a bullseye.

0:13:29.1 Michael: Right. I was like, what are we talking about here? It is it's an absurd opinion. It's ridiculous. It hangs on nothing.

0:13:39.7 Peter: Right. It's like saying me and Rhiannon look similar. And then just being like...

0:13:45.0 Michael: Got noses.

0:13:45.0 Peter: Both have feet, [laughter] brown hair and just sort of like, dot dot dot, therefore, they look the same.

0:13:52.2 Rhiannon: Therefore, twins. Yeah. Yeah. Exactly.

0:13:53.0 Michael: Twins, yeah, exactly.

0:13:55.6 Rhiannon: Yeah. And to this point about like, well, the government accepted those specifications. And so just like the government, then this contractor should be immune. Justice Brennan makes clear in the dissent, which we'll talk about more fully in a minute, that like just because the government accepted these specifications and designs it doesn't mean it was a meaningful quality check process. He says in the dissent that the majority opinion holds that, "Respondent is immune from liability so long as it obtained approval of reasonably precise specifications perhaps no more than a rubber stamp from a federal procurement officer who might or might not have noticed or cared about the defects or even had the expertise to discover them." So Scalia, using the kind of like a shield to say that the government QCed this, the government accepted these specifications, that's not actually a really meaningful process a lot of the time in federal contracting. And so nobody being liable here, everybody being immune from suit doesn't make sense at all.

0:15:06.0 Michael: Yeah. I've actually... I've done some federal contracting. I've never actually won a contracting bid from the federal government, but I have submitted bids and I've been in that process before. And it's kind of remarkable how divorced this opinion is from the process, considering the entire thing is based on these sort of factual assumptions that Scalia makes about decisions the federal government has made, choices the federal government has made between safety, costs, and combat effectiveness and whether these costs associated with more thorough QC would be passed on to the government, etcetera, etcetera. And for all that, I don't know. It's like, what the fuck are you talking about? Like this is not...

0:15:55.3 Rhiannon: Scalia doesn't know anything about how this process works.

0:15:58.2 Michael: Right. It's not how it works at all. It's not. I've done it.

0:16:03.1 Peter: The closer a job is to a regular job, the worse Scalia is at figuring out what's going on.

0:16:10.3 Rhiannon: Right. You don't have any fucking clue what this looks like.

0:16:13.3 Peter: I mean, this should sort of go without saying, but like if the government on the military side had all of the expertise necessary to understand every little nut and bolt of a helicopter, they wouldn't really need the contractor to provide them the specifications.

0:16:32.1 Michael: Right. Yeah. That's like when the government does a request for quote. Which is like sort of how they do the bidding process with this stuff, they don't give you blueprints and are like, here's a blueprint of a helicopter. What are the quotes? They'll give you specs about how many people it can carry, how far it can travel without being refueled, etcetera, etcetera, etcetera.

0:16:50.8 Peter: They'll probably be like, does it have an escape hatch? We would like one. And like implied in that in my mind would be that it works.

0:16:58.5 Rhiannon: Right. Exactly. Exactly.

0:17:01.0 Peter: That you can escape out of the hatch.

0:17:04.8 Michael: Right. But that's not how this shit works. And also it's like there's just a variety of the way contracting is done. Like some of it's done via no bid deals. Some of it's done via a bidding process. Some of it's done being sort of rigged bidding processes. But regardless, there are ways to control costs. Like if the government is concerned that the helicopters are getting more expensive because they're safer they can open up the process to more bidding to bring the cost down. Like there are things you can do to say nothing of the fact that these companies print fucking money. Like there's... It's one of the most lucrative industries in the world as military contracting for the US government. I think they could probably take a little haircut here. But yes, Scalia's not interested in any of that. At one point, he just says that it's not their place to second guess the military's judgment on safety versus combat effectiveness. Like what... You think there was some guy who was like it's more effective combat to have an escape hatch that opens out that this was a considered judgment?

0:18:11.4 Rhiannon: Yeah, like that's a thumb on the scale. Like this helicopter will be better in war because our troops can't get out of it when it crashes.

0:18:20.1 Michael: Right. [laughter] It's ridiculous. It's just, it's bullshit. It is, it's like true bullshit. They just decided they didn't want these people to pay it... That's what it comes down to.

0:18:32.4 Peter: Also, just a quick aside, if you're the company here, there's only one reason to defend this, which is that you think that it's going to happen a lot more.

0:18:42.6 Rhiannon: That lawsuits are going to happen a lot more or the crash?

0:18:47.2 Peter: Yeah, well, both. That there will be some sort of problem that leads to liability in the future, if it's in a vacuum, you just pay the family because the bad PR alone isn't really worth it, right? What they're doing... The reason they bring this up to the Supreme Court is so that they can fully fuck around on every fucking government contract they ever get for eternity.

0:19:09.0 Michael: Right.

0:19:10.0 Rhiannon: Exactly. And how much was the contract to begin with, this verdict is for $725,000, they can fucking afford it. You know what I mean?

0:19:19.7 Michael: Yeah. So the test the majority adopts heres about when this contractor immunity applies, includes like that if the company is aware of some sort of danger or defect that they have to tell the government, and Scalia says, this is such bullshit amateur economics here that this will disincentivize these companies from hiding defects from the government, because then they won't get their immunity if they hide defects from the government, but what it actually does is it just incentivizes bad QC, right? Because you don't wanna know every single little defect, 'cause then you're gonna have to disclose that to the government and they're gonna make you fix them.

0:20:07.8 Rhiannon: Exactly.

0:20:09.8 Michael: Instead, you just say, well, we didn't find that. And you have your immunity. It's totally backwards. It's absolutely backwards. Just maddening to read.

0:20:21.3 Rhiannon: Yeah, so turning to Justice Brennan's descent, which is quite good, I think, we start off real strong and you simply do not see Supreme Court liberal justices writing like this right now, Brennan say, "Had respondent designed such a death trap for a commercial firm, Lieutenant Boyle's family could sue under Virginia tort law and be compensated for his tragic and unnecessary death." Right out the gate, this is a fucking death trap, and if this was just United Technologies Corporation not contracting with the federal government, this family would be compensated, they could proceed with this lawsuit and they would be paid for this wrongful death, so the rest of the descent is mostly pointing out here that this is not a lawsuit against the Federal Government, as Scalia kind of tries to frame, right? The government is not a party to the suit, it doesn't have anything to do with the rights and duties of the government, the lawsuit doesn't have any effect on the US or the treasury. This lawsuit, he says, is, "At best collateral to the federal government," so this guy is suing a private corporation over the wrongful death of his Son because they made a defective, dangerous product, right?

0:21:31.9 Rhiannon: Brennan says, "This case is however, simply a suit between two private parties, we have steadfastly declined to impose federal contract law on relationships that are collateral to a federal contract or to extend the Federal Employees immunity beyond federal employees." United Technologies Corporation is not an employee of the federal government. I think this is important because Brennan highlights particularly well here that the entanglement that Scalia is trying to demonstrate that this issue is somehow so close to the issues of federal governance, that federal government immunity has to be extended to this corporation. That it touches on so many federal issues that this is actually a political issue, and it can't just be a lawsuit between two private parties. What Brennan highlights by emphasizing this is that this is a policy choice that Scalia and the majority are imposing on this situation.

0:22:30.7 Rhiannon: Scalia says that allowing the suit here would erode the government's ability to make discretionary decisions, it would imbue judicial second-guessing into discretionary government decision-making, but Brennan clarifies Scalia's own point. He says that this fear is, "Rooted not in a concern that suits against government contractors will prevent them from designing or the government from commissioning the design of precisely the product the government wants, but is the concern that such suits might preclude the government from purchasing the desired product at the price it wants," and he goes on, "The financial burden of judgments against the contractors, the courts fear, would ultimately be passed through substantially, if not totally, to the United States itself." So, and even worse than that, Brennan says, even if this kind of burden is passed on to the government through its contractors, there's absolutely no evidence in law or precedent or anywhere else that that justifies extending the immunity to the contractors, so what if the government has to pay more?

0:23:38.9 Peter: This is the impact, which you see in many late 80s, especially Supreme Court and Court cases generally, the impact of law and economics.

0:23:47.7 Rhiannon: That's right, that's right.

0:23:49.8 Peter: Which takes off in the 80s and is about... Including Econ 101, just like dumb ass supply and demand chart that does not apply to the real world in any way, that level of econ to legal opinions, there was just a five-year span where there would be one paragraph of every supreme court decision that was like, the costs from this decision would get re-distributed to consumers and as you... Shut the fuck up. [chuckle]

0:24:25.7 Rhiannon: Right, exactly. It should be expensive for companies to kill people, it should be... I don't...

0:24:32.5 Peter: Also, like your job's not to fucking allocate cost, it's just so obnoxious, but yeah, this is a real feature of so many Supreme Court decisions from this era, it's tedious.

0:24:46.9 Michael: Stevens also had descent also, unlike descents you see in the court today, in that it was just blessedly short. It was like three paragraphs.

0:24:58.9 Michael: Yeah. Cool, three para.

0:25:01.6 Michael: Yeah. Where he's just like, "Look, everybody who isn't a liar knows that the court sometimes have to make law, but we should be careful about when we do and how aggressive we are, and in cases like this where this is just a very straightforward balancing of policy considerations, we're not the right body to be making these decisions, that's for Congress and the executive to do." Simple to the point. Undoubtedly correct. Just every single word absolutely correct, and it just makes the majority so much more embarrassing in comparison.

0:25:39.4 Peter: Yeah.

0:25:40.4 Michael: This feels like a good time to take a break. And we're back.

0:25:45.5 Peter: I think we should probably talk about tort reform, because I think it's important to contextualize this case in the broader tort reform discussion that is starting to happen at the time this case is being decided. To sort of march you through an over-simplified version of this history, in the 1950s, you get the introduction of strict product liability, which meant that plaintiffs no longer have to prove that a manufacturer was negligent when they bring product liability lawsuits, this leads to far more and far more successful lawsuits against corporations.

0:26:24.0 Peter: In the 60s, you get the introduction of federal class action lawsuits, in the 70s, you get the start of the famous asbestos litigations after we figured out that we've been coating our homes in a thick gloss of poison for several decades. In the late 70s, you get the legalization of attorney advertising, after which plaintiffs lawyers can advertise for clients, and were you injured by licking your insulation as a young boy?

[laughter]

0:26:55.4 Peter: By the mid-80s, you're starting to see business interests rebel against all of this and start lobbying the government for reforms to tort laws to limit recovery, caps on damages, limits on joint liability, all sorts of stuff. So this case in 1988 is squarely placed in the relatively early stages of a large scale political effort to begin insulating corporations from liability, so the law here is ostensibly about government contractors, but what brought us here and what runs between the lines is a political project that's much broader in scope.

0:27:42.6 Rhiannon: Yeah, absolutely, and it's a political project sort of designed at changing cultural perceptions of litigation.

0:27:51.5 Peter: Right. Not just a policy project.

0:27:53.4 Rhiannon: Exactly, exactly. Of making it seem to the public at large, that there is this huge amount of frivolous litigation that tort litigation has to be reigned in because people are making sort of wacky, hyperbolic claims that are bad for business, right? It makes me think of the McDonald's coffee case. It's a famous case that likely everybody listening has heard about, but there was this 1994 lawsuit against McDonald's, where a woman said that she had been burned by a cup of hot coffee from McDonald's, she sued for compensatory and punitive damages, so she sued to get her money back for the medical costs that she had and also damages that would punish McDonalds for doing this, and a jury at the time gave her just under $200,000 for the compensatory damages to cover her medical costs and about 2.7 million in punitive damages against McDonald's.

0:28:48.7 Rhiannon: The press at the time, or the cultural response was that lawsuits of this kind had just gone way too far, this woman was dragged in the media, she was told that she was suing for millions of dollars for... Oh, you spilled coffee on yourself, like big deal, right. This lawsuit was dragged as a poster child for the excessive frivolous litigation going on, on and on and on, right, but nowhere in there were the facts, the facts were this woman was 79 years old, she had spilled coffee on herself from McDonalds that gave her third degree burns in her pelvic area. It had required major skin grafting and two years of medical treatment, and before the trial, she had asked for a settlement of $20,000 from McDonald's and McDonald's had refused, so they went to trial, and that's what the jury decided after hearing the evidence, about three million. And the $2.7 million in punitive damages, that was equivalent to two days of coffee sales for McDonald's.

0:29:54.6 Michael: McDonald's decided that it was better to change all of society's perception of lawsuits to pay this lady $20,000.

0:30:02.4 Rhiannon: Exactly.

0:30:02.5 Michael: 'Cause there was a board meeting where someone was like, "If we pay someone who spills 180-degree coffee on themselves, $20000, then every person gets third degree burns from our coffee is gonna want $20000." And they were like, "Great point. We're gonna fight this to the death."

0:30:23.5 Rhiannon: Exactly, exactly. And so this is sort of part of the cultural context that this case, Boyle, is happening in. An idea among conservatives that lawsuits are getting too excessive, that they are too excessive, that corporations should not be vulnerable to liability and that they just shouldn't have to pay for the harm that they do at the scale that they did.

0:30:44.0 Michael: And we should say not just conservatives. I mean, does everyone remember the scene from Liar Liar where like his secretary quits or whatever, and she's like, "My friend had a robber fall through her skylight and injure himself, and he sued her and he won," and it's like this never happens. But that was like popular media's conception of how slip and fall lawsuits were.

0:31:09.0 Peter: Liberal Hollywood.

0:31:11.6 Rhiannon: Yes.

0:31:13.0 Michael: Right, right, exactly. You can just be trying to murder someone and if you hurt yourself, you sue them and win, that was something that people thought was actually happening.

0:31:23.8 Peter: There's one more point about the facts of McDonald's that I always like to make, which is that McDonald's... Everything is very well controlled there, and they had research that said that people at their drive-through buy their coffee, put it in a cup holder, drive to work and drink it at work, so if they serve it at a safe temperature, by the time people actually drinking it will be cold. And so instead, they purposely serve it at these insanely hot temperatures that...

0:31:54.0 Rhiannon: Near boiling. 180 to 190 degree.

0:31:57.7 Peter: Near boiling, that burned this women's skin off, they required her to get skin grafts. This was by design, this was like a strategy of theirs. So yeah, they maybe should have had to pay her some money, that's not crazy.

0:32:12.1 Rhiannon: Yeah, exactly. And so this case, Boyle, the one we're talking about is obviously a little bit different because there is this government aspect here, although like we see from Brennan's descent, there's nothing that different about this case that means it shouldn't just be a regular lawsuit between private parties.

0:32:27.1 Michael: Right, that distinction has been made up by the court.

0:32:29.5 Rhiannon: Right. Exactly.

0:32:30.1 Michael: The fact that the government contractor angle is relevant is only because Antonin Scalia says it's relevant.

0:32:38.9 Rhiannon: Exactly, exactly. So regardless, Scalia is framing it as a different kind of lawsuit, but you still see this kind of cultural framing in this case, this recognition at the expense to corporations for product liability is a thumb on the scale that we need to consider. Is something to be avoided because of the bad consequences that supposedly flow from that, meaning higher costs. Repeatedly in the opinions, Scalia refers to the idea of product liability here as something that if allowed would be a "Pass-through cost to the government," he says, "The financial burden of judgments against the contractors would ultimately be passed through substantially, if not totally, to the United States itself, since defense contractors will predictably raise their prices to cover or to ensure against contingent liability for the government-ordered designs." So litigation costs, he says, are gonna be passed on to the government because corporations will increase their prices, like we've said, for fear that they're gonna be sued, but like... So what? You're saying that the government's bottom line can't be affected if they contract with companies whose products fucking kill people.

0:33:52.0 Peter: This is also how all of liability work.

0:33:55.5 Rhiannon: Right, it's how the law works.

0:34:01.2 Peter: When you sue a company that causes them to need lawyers and they spend the money on those lawyers, what do they do to pay for those lawyers? They use profits from the things they sell. So yeah, they might even raise prices in order to afford their in-house lawyers, just like they raise prices to be able to afford their in-house sales people or whatever the fuck.

0:34:23.8 Rhiannon: Or whatever.

0:34:23.9 Peter: This is just how business operates.

0:34:27.2 Rhiannon: Exactly, and also, this is the law, like company bottom lines can't be effective. It's a fucking tort. What is the point of torts? You hurt somebody and you have to fucking pay for it, that is accountability in our legal system.

0:34:41.7 Peter: The entire purpose of like law and economics was to do this sort of like Gotcha. When people are like, "Well, you should be able to sue someone who hurt you," and they were like, "Did you know that they would pass those costs on to the consumer?"

0:34:56.8 Rhiannon: Woah. Let's not do it then.

0:35:00.0 Peter: I guess that I should be burned with coffee and have to die in a helicopter that's filling up with water, then. Thank you, thank you, law and Economics guy.

0:35:09.5 Rhiannon: Yeah. Thank You, logic. Brennan in descent, again, points this out really clearly, he says, "The tort system is premised on the assumption that the imposition of liability encourages actors to prevent any injury whose expected cost exceeds the cost of prevention. If the system is working as it should, government contractors will design equipment to avoid certain injuries like the deaths of soldiers or government employees, which would be certain to burden the government. The court therefore has no basis for its assumption that tort liability will result in a net burden on the government, let alone a clearly excessive net burden rather than a net gain."

0:35:53.0 Peter: Imagine what it's like to be the family of this guy who died horrifically. And you just want something that feels like closure and loosely resembles justice, and you have to read the most convoluted nonsense about federal interests and like immunity by proxy. Like if you're touching the government, you're safe kind of a fucking reasoning, like the government is home base, and if you're a fucking manufacturer, if you're touching the government, you can do whatever, you're immune.

0:36:28.8 Peter: What is the point of tort law, right? It's that you can recover your losses if someone causes you an injury, this undermines one of the most fundamental precepts of our laws, the idea that when you are injured, you can recover. It's like step one in every legal system that has ever existed, and you have it getting short shrift here as if it's not like an important principle, as if the federal government's implied interest in immunizing its contractors, which it never said it wanted to do, is somehow more important than the most fundamental element of civil law.

0:37:12.2 Michael: Yeah. And even bigger picture, like the role of tort law in how we shape our entire society, like our Laissez-faire, neoliberal Society, the idea behind privatizing government manufacturer of military weapons is that they would be safer and more cost effective at the same time, the private industry would do it better. And the idea behind having little regulation is to free companies to innovate and to be bold or whatever, and all these things together, any one of them, you're like, "Okay, I can kind of see it," but it's like, "Alright, if we're not regulating upfront, we're not demanding certain specifications from everyone who makes helicopters that their escape hatches have to work." Right? [chuckle]

0:38:04.7 Rhiannon: Right.

0:38:06.3 Michael: Has to have an escape hatch and that has to open, not just a theoretical escape hatch, an actual escape hatch. [laughter] We're not gonna do that, we're not gonna have the government make this, we're going to have private industry do this, and also we're not gonna let private industry be held accountable on the backend when they don't do it. That's just lawless. There's nothing. There needs to be, at some point, some sort of intervention, accountability, control, either the frontend or the backend, and they want none, they want industry to run wild, just extracting value from the American taxpayer at every turn.

0:38:47.4 Rhiannon: Yeah, I just remembered this about the opinion, this really pissed me off when I was reading it, just showing sort of the hollowness intellectually of this legal argument that Scalia is putting forth, he also throws in there that Virginia State law didn't allow for this kind of lawsuit before 1962. And it's like, yeah, because the entire economy, the entire system of tort law, all of product liability was fucking different before 1962. You fucking idiot. In 1962, the state of Virginia decided they were gonna do it this way. You're so dumb.

0:39:28.5 Michael: Literally decades ago. It's not even like, "Oh, until last month."

0:39:34.1 Peter: It's that sort of conservative mistrust of anything new. Anything new is tainted by the decay of our modern society.

0:39:42.7 Michael: And it just so happens that new starts right before the Civil War, it's like...

0:39:49.2 Rhiannon: Right, right. Exactly. Yeah.

0:39:53.5 Peter: Yeah. But it's 1988. 1962 is 26 years. It's such a bizarre argument, but I do think it's rooted in this conservative mistrust of the modern world, and the idea that we are sort of departing from our roots in some way, where you could say, "Oh, this is relatively new as a law, and therefore it doesn't even matter that much." I think it's quite reasonable to come to the opposite conclusion, this law is new, relatively speaking, and therefore reflects the values of our society more than an older law.

0:40:34.0 Rhiannon: Yes, exactly.

0:40:36.1 Peter: That would make a little more sense to me. Also, the implication is that if the law were brand new, like literally passed by this year's state legislature, that he would be like, "What the fuck is this? This just happened and now... And we have to respect it. No, no, no, no, that's not how laws work, the way laws work is you pass it, and then 50 years later, maybe I'll think about enforcing it."

0:41:00.0 Michael: And that's actually how he thinks though. If we think back to enforcing TROs in Castle Rock. That was an old case. We did a while ago, Castle Rock was a case about a woman with a restraining order against her ex-husband that the police had failed to enforce, which ultimately led to the husband killing their two kids, and the state had just passed a law a few years earlier, making the enforcement of restraining orders mandatory, saying that officers shall enforce them, even using all caps, big bold letters, could it be more clear and Scalia's take was, "Well, but that's not how we've always done it. So that can't be what they mean." And so when something's new and doesn't fly with the values of the conservatives, well, then that can't be really what the legislature meant, and when something's older and it doesn't drive with the values of the conservatives, well, then it's like, "Well, what? We're gonna listen to some congress from the 60s, and if it's older still then even less weight," unless they agree with it, then it's the history and tradition of our country. It's just rhetorical games. It's not sincere. And this is just a perfect example of that.

0:42:28.7 Peter: Yeah, and there is that sort of quintessential conservative ideology creeping in of just pure skepticism of anything new as being almost too novel, that these sort of new fangled laws are a deviation from what got us here, from what made us strong and good. That's a sort of core part of reactionary thought, the fear and skepticism of new things, of change, of progress, and you see it just as clearly in a case about torts as you do in cases about abortion, about gun rights, about all the things that are like the heart of the conservative culture war.

[music]

0:43:25.7 Peter: Next week, Cruzan v. Missouri Department of Health case about euthanasia and the Right to Die, which you do not have.

0:43:37.1 Rhiannon: Sure, the state can murder you.

0:43:40.1 Peter: That's right, if you really wanna die, just kind of look at a cop the wrong way for like a little bit too long.

0:43:46.6 Michael: Oink at them.

[laughter]

0:43:53.6 Peter: Follow us on Twitter @fivefourpod, follow us on Instagram @fivefourpod, subscribe to our Patreon, patreon.com./fivefourpod for access to premium and ad-free episodes, special events, access to our reading circles, which were quite helpful and fun when we prepared for this case.

0:44:15.4 Rhiannon: Yeah, we had a reading circle ahead of recording where subscribers, Patreon subscribers could get in there and make some comments, talk about ideas. I really liked it.

0:44:25.0 Michael: Yeah, I thought it was great.

0:44:25.5 Peter: Some of our subscribers are very smart.

0:44:28.7 Rhiannon: It turns out.

0:44:29.6 Michael: All the ones who like my comments, I think.

0:44:31.7 Peter: They're just sucking up.

0:44:35.3 Michael: And also, if you are listening to us on YouTube, thank you so much, we see you, we love you guys, and if you are not following us on YouTube but you use it, follow us there, fivefourpod, all spelled out. We're gonna have some exclusive content for that soon, we're very excited about it. It's a new way for us to be in touch with you guys. So come check it up.

0:45:00.1 Peter: Alright, we will see you next week.

0:45:00.7 Michael: 5-4 is presented by Prolog projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks @chipsny and our theme song is by Spatial Relations.

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0:45:34.3 Michael: So if they served at a safe and... What's... Not edible but...

0:45:40.8 Peter: Drinkable.

0:45:43.8 Michael: Drinkable temperature yeah. A drinkable temperature...

0:45:45.7 Peter: Sipp-able.

[laughter]

0:45:49.4 Michael: Potable.

0:45:50.8 Rhiannon: Lickable.