Fixing America – Ideas 4-6
Blog No. 107
October 29, 2019
Fixing America – Ideas 4-6
By Mack W. Borgen, Recipient of Eight National Book Awards – For a “cleaner” / non-email presentation of this and my other blogs, essays, and articles, please go to my website at https://www.mackwborgen.com/
Introduction
This is the second article in my series of Ideas Blogs. In this series, I present ideas which might help in “fixing America.”
Some of the ideas are my own. Some of them I have come across in the course of my research over these last now 12 years for my last two series of books – The Relevance of Reason (Vols I and II) (2013-2014) and Dead Serious and Lighthearted (Vols I, II, and III) (2018-2019). A few of them are older, even well-known ideas which I believe reconsideration.
These ideas cover a wide range of subjects. The ideas are presented without lengthy comment or recommendation, but I believe that you, like me, may conclude — like the title of my initial blog in this series – that many of the ideas already percolating out there in our America “are good … and some are brilliant.” Enjoy.
Idea No 4
Award Attorneys’ Fees to Winning Party
Background: Attorneys’ fees are oftentimes a dominating consideration with respect to the initiation of and the defense against lawsuits. There are multiple iterations of small claims courts in all jurisdictions, and in such courts attorneys are normally barred from appearing. However, the maximum recoverable amount is oftentimes very low – from $2,500 to $7,500. In other cases statutory provisions allow for a prevailing party to recover attorneys’ fees, and certainly attorneys’ fees recovery allocations are a boilerplate component of every well-drafted contract. But still, there are many cases in which each party, rightly or wrongly, must pay their own attorneys’ fees. This means that far too often courts – the judicial system of America – are, as a practical matter, only available to corporations and the wealthy because only they can afford to sue or afford to defend themselves when sued. There is a far better way.
Idea: It should be provided in both federal and state courts that the prevailing party in any litigation should be entitled to recover attorneys’ fees and costs. Stated conversely, the losing party should be required to pay the attorneys’ fees of the winning party.
Implementation: The allowance for the award of attorneys’ fees is common practice in many other countries. Disappointingly, it is not that way in the U.S. It is the opinion of this author that the U.S. non-allocation of attorneys’ fees leads to many bad consequences. For example, requiring a “winning party” to have to absorb his, her or its own attorneys’ fees contributes to the initiation of many “shakedown” lawsuits in the U.S. Requiring each party to absorb their own attorneys’ fees regardless of whether they are found liable is one of the mechanisms whereby both corporations and wealthy individuals sometimes feel largely immune from attack – and conversely, merely because wealthy individuals and corporations can more easily afford paying attorneys’ fees by and of itself intimidates customers, employees, contractors, and other third-parties. Lawsuits oftentimes recite numerous claims, and as a result, it is commonplace for a party to win some claims but lose others. However, even in these instances, attorneys’ fees can and should be awarded by the court. Courts routinely allocate what is known as “relative” or “comparative” liability.” Thus, even in such normal cases where one party wins some but not all claims, the common law practice of awarding for reimbursement of attorneys’ fees to the prevailing party could easily be the standard practice. The soundness of this idea may also be buttressed by the simple fact that every attorney will confirm that this change would immediately lessen the number of lawsuits filed each year in the U.S. And that would be a good thing. Source: Long-standing Idea – Included for Reconsideration
Idea No. 5
Positive Aspects of U.S. Society As Distinct Chapter of School Curricula
Background: In today’s acerbic and dangerously pessimistic environment, it is easy to overlook that which is “right” with our society, our constitutional democracy, and our economic system. This is especially true among younger Americans who have not experienced calmer times or witnessed more congenial debates. As I write this, it seems strange that it should even be deemed “an idea” to have to suggest that it is affirmatively necessary to teach the positive aspects of America as a formalized part of U.S. curricula. But this is necessary. Debates about America’s contemporary problems will rightly remain at the center of secondary (high school) U.S. history courses, but the positive aspects of our society should also be a distinct component of such courses – the brilliance of the 4,400 words of our constitution; the rights of free speech and association; our freedom of religion; the commitment and talents of most Americans to their work; and even the glory, diversity, and expanse of our country’s geography and resources. It is not the intention of this idea to diminish the many serious issues facing this nation or to deflect from the reality that our country is deeply divided. However, amidst this stir of stress and confusion, remembering what is right with our country is also important and may give us encouragement.
Idea: The curricula of U.S. history classes in our secondary schools should expressly address — as an express block or section of such classes — those aspects of our society, constitutional democracy, and economic system which are commonly viewed as positive and honorable in theory and sometimes in practice.
Implementation Comments: Politically charged writings dominate both the news and the bookstores, but there are a number of books which highlight America’s positive virtues. For example, although written in a lighter and essay style, Roger Rosenblatt’s “Where We Stand – 30 Reasons for Loving Our Country” (2002) could be one source of supplementary reading. This book is offered as only one alternative, but it cleverly presents “the remarkable qualities that make our country worth preserving” in a series of “thirty short essays.” The implementation of this idea would be uniquely challenging since most curricula are developed at the state or school district levels. Nevertheless, in the humble opinion of this writer, this idea should still be adopted even if it must be done one state or one school district at a time. Source: Mack W. Borgen
Idea No. 6
Office of International Comparisons (the “OIC”)
Background: There are 195 nations around the world. Each nation is almost definitionally unique. However, many nations – and especially, many developed nations — face issues similar to those of the U.S. Consequently, prior to the enactment of legislation in the U.S. with respect to any matter, it would be advisable for there to be a formalized, routinized, and mandated step to review how the subject of the legislation is handled in other jurisdictions. This is sometimes done now, but it is done only informally and occasionally as a result of the knowledge and expertise of the drafting party or his or her staff. Thus, the experiences and ideas of other nations remain unknown or ignored. As a result, the U.S. (and our states) are too often re-inventing the proverbial wheel.
Idea: Establish a federal Office of International Comparisons (the “OIC”) to serve as a readily available resource for federal, state, and even city elected officials and their staff. Through the OIC, before any legislation is proposed or any new rule or regulation is promulgated, the author(s) of such legislation or proponent(s) of such rule should be required to summarily review how such matter is addressed in other jurisdictions.
Implementation: At first blush, this proposal may seem to be almost overwhelming. It may seem to add another burdensome level of bureaucracy; another step impeding needed legislation. However, as noted above, the alternative is to reinvent the proverbial wheel over and over again and to remain ignorant and uninformed about the sometimes fascinating and creative approaches already being taken in other countries with respect to any given matter.
Take two quick and widely disparate examples.
Voting and Voter Protection. Every democracy has voting procedures to encourage, protect, and validate the will of its people. But what are the procedures used in other country – hours and manner of voting, ballot protection and counting mechanisms, containment of voter intimidation and voting fraud, proof of right to vote, etc.”
Encouragement of Constructive School Behavior. What steps are used in other countries for the enhancement of education and the encouragement of constructive school behavior? We know the normal alternative mechanisms commonplace in the U.S. ranging from dress codes to study hall; from suspensions to student expulsions. But what are the school practices in other countries? Other ideas could be made readily available to legislators and school boards through the use of a single, accessible Office of International Comparisons data base. Source: Mack W. Borgen
Cross-Reference – See Also Additional Previously-Presented Ideas
Idea 1 – Consolidated Interstate Database for Reports of License Suspensions or Revocations (Mack W. Borgen Blog 106, October 14, 2019)
Idea 2 – Term Limits (Mack W. Borgen Blog 106, October 14, 2019)
Idea 3 – The Media – Report Corporate Settlements, Awards and Fines as Percentage of Annual Net Profits (Mack W. Borgen Blog 106, October 14, 2019)
Added Blog Feature – The Fancypants Word of the Day
Senescence (Part of speech: noun; Origin: Latin) 1) The aging process, 2) In nature, a cell’s loss of the ability to divide. Example of use in sentence: “Senescence comes with aches and pain, but it’s also a time to look back on your life.” Source and thanks to wordgenius.com and Shawna Borgen.
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