|
Everyone is in a constant state of making risk assessment, even though not all folks scientifically view their judgment thinking along these well defined lines; anytime an environment of risk is being entered, risk assessment judgment is actually being made, even if subconsciously. Gremlins, being the administratively well organized body of vermin workhorses that they are, also thoroughly immerse themselves in precise, well thought out risk assessment model scenarios. This process is normally used in such areas like probing for the probable subject reaction to one more turn of the screws, or in estimating the likelihood of actually achieving, and then getting away with, some desired damages somewhere -- some murder, some revolution, or some war, conquest, asset grab, or famine being manufactured someplace. From the Gremlin perspective, then, risk assessment has to be viewed as another tool in the decision making process to deflect the occurrence of adverse circumstances as what was once a great Gremlin enscrewment plan starts to fall apart for some unexpected reason. Gremlins have had a few words to say about structural risk analysis and assessment (I selected this discourse due to its Highway setting and the political overtones it brings to light):
"There is no such thing as a risk free society. There is no point in getting into a panic about the risks of life until you have [made comparisons]. ...puzzling is the apparently irrational attitude which people have towards environmental hazards... Some 7,000 people are killed and some 350,000 injured each year on the roads of Britain. Yet this perpetual carnage -- nearly 1,000 killed or injured every day -- generates no public outrage. ...you will find that politicians will be rather chary of imposing a maximum speed limit of 50 miles per hour on all roads where the limit is not already 30 or 40, though if they did, both energy and lives would be saved. Why then don't they do it? It would not really be difficult to enforce.
"...I shall put the answer politely: Their [risk assessment] judgment... tells them that people would not like it. And then all the other goodies they have in mind for you, less unemployment, less inflation, less taxation, and increasing standard of living, fair shares for all... you name it -- might be unrealizable; because, you might say, `Maybe we need a change of Government. I want to go faster than 50 miles per hour on all those marvelous motorways I paid for.'
"...The results of risk accounting are surprising..." - Baron Nathaniel Rothschild in the Wall Street Journal ["Coming to Grips with Risk"], page 22 (March 13, 1979).
In a factual setting where an unlicensed driver creates damages out on the highway, then punitive incarceration is appropriate, and this requirement reconciles everyone's objections by accomplishing the same identical criminal recourse the incarcerationists yearn for so much in their vindictive cries for encagement glory.
Incidentally, by comparison in Canada, the Ontario Police only seeks a $53 civil fine for driving without a license, and the sky doesn't seem to be falling in on Canada without the existence of some precious little penal statute in existence to incarcerate an unlicensed drive; so Case hardened American judges who parrot the Insurance Company lobbyist line (that incarceration is the only medicine to deal with unlicensed drivers) are exercising flaky judgment that isn't very well thought out ("...da law says I gotta").
For a review of the numerous arguments on judicial competence limitations and calibre capacity as manifested by Case hardened Judges, see Thinking About Courts: Towards and Beyond a Jurisprudence of Judicial Competency by Ralph Cavanaugh, et al., in 14 Law and Society Review 371 (1980).
Even prominent United States Supreme Court Judges can be found operating in this competency limitation strata, (Justice Felix Frankfurter very openly stated his observation that judicial competence is limited. In Marconi Wireless vs. United States, he stated that:
"It is an observation that the training of Anglo-American judges ill fits them to discharge the duties cast upon them by patent legislation. ...judges must overcome their scientific incompetence as best they can." - Marconi Wireless vs. United States, 320 U.S. 1, at 60 (1942).
Justice Frankfurter then went on with supporting quotations from Thomas Jefferson and Judge Learned Hand. And just as Federal Judges can be competency deficient in scientific knowledge, thus rendering their judgments in that area prone to error, so too can they be, and in fact are, competency deficient in other areas as well, generating similar erroneous judgment results.)as they live in a shell, isolated away from divergent opinions that may very well be built upon an enlarged basis of factual knowledge they do not possess, and as such, just might possibly have some merit to them. Consider Supreme Court Justice William Rehnquist:
"No one questions that the State may require the licensing of those who drive on its highways and the registration of vehicles which are driven on those highways." - Rehnquist, dissenting, in Delaware vs. Prouse, 440 U.S. 648, at 665 (1978).
Sorry, Mr. Rehnquist, but there are many people who are questioning such a licensing requirement, and they have more than sufficient minimum legal authority, based on several thousand State and Federal Court Opinions from a different era, as to warrant both a hearing and an extended Judicial response -- and not the snortations of a Judge who spent virtually his entire isolated life working for Government. [Notice how I said that Highway Contract Protesters are entitled to a Hearing and an Explanation. I did not say that they are entitled to prevail.]
This highway power play by Insurance Companies, to use penal statutes and the police powers to experience Commercial self-enrichment, raises a secondary "fairness" question on the propriety of using statutes operationally skewed to favor their sponsors; however, "fairness" is a Tort concept definable only along the infinite -- and in contrast to that, contracts are narrow, specific, and contain detailed positive mandates and negative restrainments in effect between the parties. Being that contracts are both specific and finite, and that special benefits were accepted synchronous with the contract's technical reciprocal contours being pre-defined; therefore, the inherently indeterminate nature of fairness is fundamentally out of harmony with contracts, and properly belongs in that free-wheeling world of Tort Law, where anything goes. Where the terms of contracts are not freely negotiated due to the dominate overbearing positional strength of one of the parties, the judicial allowance of a de minimis amount of corrective "fairness" is appropriate since there never was any mutual assent (For an illuminating article on the topic of Mutual Assent in contracts, see Samuel Williston in Mutual Assent in the Formation of Contracts, 14 Illinois Law Review 85. Under some conditions, the amount and nature of relief damages that can be awarded under contracts is sensitive to the status of the contracts falling under an objective meeting of the minds test [meaning some type of an Adhesion or quasi-contract (forced in whole or part on people) is in effect]; or in the alternative, a subjective meeting of the minds [meaning a purely negotiated contract is in effect]. See Implied-in-fact Contracts and Mutual Assent by George P. Costigan, 33 Harvard Law Review 376 (1919). )
-- and that already exists in American Jurisprudence and is now called the Adhesion Contract Doctrine.
In 1985, the California Supreme Court handed down four cases that I am aware of that touched to some extent on the Adhesion Contract Doctrine:
*
Victoria vs. Superior Court, 710 Pacific 2nd 833 (1985);
*
Perdue vs. Crocker National Bank, 702 Pacific 2nd 503 (1985);
*
E.s. Bills Ins. vs. Tzucanow, 700 Pacific 2nd 1280 (1985);
*
Searle vs. Allstate Life Insurance, 696 Pacific 2nd 1308 (1985).
For example, in Perdue vs. Crocker National Bank, bank account signature cards were deemed Adhesion Contracts; and Contracts of Adhesion are referred to as signifying standardized contracts which, when drafted and imposed by a party of superior bargaining strength, relegates to the other subscribing party only the opportunity to adhere to the contract, or in the alternative, to reject it in toto [meaning rejected in the whole]. In Searle vs. Allstate Life Insurance, Justice Bird noted that insurance policies are Contracts of Adhesion, and that therefore, if there are any vague, evasive, and ambiguous statements in the contract, the party who drafted the contract (the insurance company) loses when a grievance turning on the vague clause comes before a Court. In both Cases, an underlying common denominator surfaces in that there really was not any mutual assent ("meeting of the minds") in effect by the parties at the time the contract was entered into.
|