In this week’s Elie v. U.S., our justice correspondent explains why tort lawyers are our next, best regulatory hope. Plus, the other legend who died this week.
Mark Zuckerberg’s personal Facebook account is displayed on a mobile phone with the Meta logo.
If you want to stop a large business from causing incalculable harm to ordinary people, there is one surefire way to do it: Release the tort lawyers.
That was one of the lessons of the settlement this week between Facebook, which now wishes to be called Meta, and 47 states. The states sued the social-media giant for endangering children with addictive practices that undermine their mental health. On Wednesday, Meta settled for $17.1 billion.
The settlement is not just about the money. These kinds of settlements never are. As part of the deal, Meta agreed to make massive changes to how it tries to trap kids on its platforms, which also include Instagram. Some of these settlement-imposed restrictions are things you could never achieve through congressional regulation. For instance, Meta agreed to set time limits on how long teens can be logged in to Facebook and Instagram. If you tried to impose that through legislation, somebody would sue the government, and the pro-business, Republican-controlled Supreme Court would likely overturn it. But if Meta is doing it “voluntarily” (if “voluntarily” means at the point of a tort gun), there’s nothing John Roberts can do.
So which tech-boy mega-business is going to get the tort treatment next? Every day, the rising Nerd Reich tramples more and more of our jobs, our democracy, our freaking mental health. While the government aids and enables, tort law is beginning to look like our best regulatory hope. Our regulators of last resort.
I know that sounds counterintuitive to a lot of people. We’ve been trained to think that regulation requires congressional legislation followed by enforcement by the executive branch. We’ve been trained to think that the threat of criminal penalties, including jail time, restrains the worst instincts of the oligarch class.
It’s great when those levers work, but at the end of the day, the only thing the billionaires really care about is money. Tort lawyers take their money. Most big business interests can buy their way out of jail (see, for instance, the precisely zero people jailed for their roles in the 2008 financial collapse). Most congressional legislation merely changes the parameters of how these people make their money. Most antitrust laws… are never enforced. But tort lawyers can reach into these companies—through lawsuits filed by private individuals or state and government institutions themselves—and take money away from these people. Businesses respond to that kind of pressure.
Tort litigation works. It worked against the tobacco industry. It’s pretty much the only thing that has ever worked against the fossil fuel industry. It worked against the Sackler family. It was working against the gun industry, until ammosexuals passed a whole law to stop it from working. (I have a whole chapter on this in my book, Bad Law).
And I promise you, it’s the only thing that is going to work against Big Tech.
Obituary
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John Nichols
A man who erected a guillotine outside the Supreme Court was arrested on Tuesday and charged with “transporting a deadly weapon.” The man allegedly drove the guillotine on his flatbed truck from his home in California to Washington, DC.
Given that we live in a violent country, it is important for me to say that, as much as I detest the current Supreme Court, I do not support the French solution to our problems. I’m a Truth and Reconciliation guy, not a Committee of Public Safety guy.
But I have a number of problems with the arrest of this man, who remains unnamed.
First of all, he did not go full Robespierre on the Supreme Court. It’s hard for me to look at a guillotine as a “true threat,” which is the legal standard here. That means I don’t think he intended to cause imminent harm to the Supreme Court justices. It seems to me that he was making a political statement, not a violent threat.
