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Brett Emison
Brett Emison
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The Ongoing Debate On Tort Reform "Policy"


Max Kennerly and Ted Frank have been engaged in an interesting "debate" on the issue of tort reform policy.

Kennerly's Side Here

Frank's Side Here

I use the term "debate" loosely as I have never been a fan of Frank's willingness to resort swiftly to name calling and slurs ("intellectually dishonest", "misrepresenting", "intellectual bankruptcy", "offensive blog post"). Frank denied he had a policy position in which injury plaintiffs should always lose. Frank said, "Of course there are scenarios where personal-injury plaintiffs should win." If Ted truly believes that, I hope we see more writing from him advancing that position. However, his bias against those representing injured people may prevent him from more frequently advancing such position as he concluded by noting, "no matter how low my opinion of trial lawyers, I somehow manage to regularly underestimate how low they will go to promote their profits over people."

Kennerly, to his credit, had kinder words for Frank and Frank's fellow tort reform advocate Walter Olson than Frank had for him, calling Frank and Olson "among the only 'tort reform' advocates who offered substantive commentary…." Kennerly even links to Frank on his blogroll.

Having myself drawn Frank's ire in the past, I can understand Kennerly's frustration. As Kennerly tweeted recently, it often appears that for Frank, to quote him is to "lie" about him.

I have often found that when one's intellectual argument fails or cannot otherwise be defended, one resorts to personal attacks and outlandish statements. Read the arguments and you can decide on which side of that line Kennerly or Frank will fall.

(c) Copyright 2012 Brett A. Emison

Follow @BrettEmison on Twitter.


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  1. Vern Dennis says:
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    I think it would be far more accurate to say that Ted and Walter link to Kennerly’s blog. Moreover, if you ever try to post a comment on Max’s blog it will never get accepted unless you happen to agree with Max (almost ditto for Ron Miller’s blog).

    So yes I would say that Max is intellectually dishonest, particularly when compared to the open discourse that occurs on Eric Turkewitz’s blog

  2. Brett Emison says:
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    Thanks for reading and offering your comment. I don’t know Max’s policy on comments and can’t comment on them. However, until very recently, Ted didn’t provide any ability to comment at all.

    I find Max’s arguments and positions to generally be valid. In fact, it seems like one of Max’s posts frequently end up on my end-of-week news round up.

    It seems your complaint is more about Max’s comment policy than the merit of his arguments. How does Max’s comment policy render his analyses, in your opinion, “intellectually dishonest”?

  3. Vern Dennis says:
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    Intellectually dishonest in that anyone can set up straw men, post an opinion, post only comments that agree with your own position and claim the upper hand in an argument. A blog’s comment policy is as good a measure as the blogger’s integrity as any. You are correct that Ted until recently didn’t take any comments but that meant no cheerleaders and no detractors. When all you’re doing is posting the cheerleaders, you are engaging in a charade

    You and I differ on the validity of Max’s positions. Max looks out for his own wallet – and does a good job of it – period

  4. Brett Emison says:
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    As you said, I think we’re going to have to agree to disagree with respect to Kennerly’s positions. I don’t find the same problems as you have – particularly with respect to the post that is the subject of the discussion above. Max set forth the respective positions and rather than hide from the opposing viewpoint, shared it in his post by linking to (1) Ted’s own post; (2) Ted’s blog site, Point of Law; and (3) Overlawyered.

    As to your characterization of Max looking out for his own wallet, we also must disagree. As a lawyer who blogs about legal issues, there is far more at stake then one’s wallet. Legal issues such as those discussed here and at Max’s site (and at Frank’s site for that matter) involve issues of fundamental civil liberties and God-given rights. Men and women of honor can disagree without being disagreeable.