I was amazed at Burt’s post on bar fight litigation. I learned, I laughed, and I was humbled. But I found myself asking: what are the public policy implications? Here are a few we might want to think about.
First, we should consider that the laws encouraging bars to cut off visibly drunk patrons may have a serious downside. (Here’s a rundown of the case law.) If it’s really true that most bar fights begin when a bar ejects a patron, then these laws are probably not preventing violence. They’re probably instigating it.
This is not to say that the assignment of liability to a bar doesn’t have an upside. The upside is that it may prevent drunk driving, and for that it might actually work. I say “might” because I don’t know if bars’ liability is the relevant force here. Drunk driving fatalities are way down, so we’re clearly doing something right. But how often is it that someone who would otherwise have driven drunk 1) becomes visibly drunk in a bar, 2) gets ejected and 3) as a result fails to drive drunk?
My hunch is that ejection doesn’t matter all that much for drunk driving, certainly not enough to be the key factor in our declining overall rates of drunk driving. That’s because by the time you’re ejected from a bar 1) your decisions aren’t going to be all that great anyway and 2) if you drive, you certainly will be driving drunk. (The requirement to call a cab seems a more plausible candidate for achieving the harm reduction, and cab-calling is easily separated from ejection.)
Second, we should reconsider the effects of memory on our criminal justice system. There are a lot of other reasons to do this, of course, and not just for bar fights. But the unreliability of memory suggests that trials involving eyewitnesses should happen much, much closer to the time of the events in question, even if it means sacrificing some other values that we also want out of our justice system.
There are a variety of ways to accomplish this goal. Some are more obvious than others. I’ll leave it to commenters to hash out their favorites.
Third, we should reconsider the effects of unresolved disputes on the disputants. This is as old as Charles Dickens, if not older. But again, if delayed justice is predictably less accurate and more painful for all involved, perhaps some other considerations need to go by the wayside in favor of speedy trials.
It’s not simply that justice delayed is justice denied, although that may be the case. It also appears to be the case, at least anecdotally, that justice delayed is inflicting punishment on innocents, and this is a thing our justice system is purportedly designed to avoid, even if it means letting some guilty people go free.