This "Nader" talking point is convenient

[Jim Lane]

110. In the context of most Nader disputes, I should be glad that "oddities" is such mild criticism. :)

1. Nader's effect on the outcome

Of course Nader affected the outcome. The outcome I care about is that Bush became President. One can condemn the Supreme Court decision and yet believe that Katherine Harris's illegal voter purge also affected the outcome. One can condemn both SCOTUS and Harris and yet also believe that the butterfly ballot affected the outcome.

Nader made his mark in tort law. An elementary principle of tort law is that an event can have more than one proximate cause.

Let me tell you about a real-life case I worked on. The landlord of an apartment building negligently failed to repair a broken front-door lock. As a result, a nonresident gained entry to the building and sexually assaulted a 12-year-old girl who lived in the building. As is customary in such cases, the actual perpetrator had no money, so, on behalf of the girl, we sued the landlord.

You write, of the 2000 election, "It still means it was stolen, so your anger is misdirected." In the lawsuit example, the analog would be, "It still means there was a sexual assault, so your anger at the landlord is misdirected."

Fortunately, the law in New York, where this happened, is not that dimwitted. Yes, the perpetrator was at fault (and the good news is that he was captured and did some time). Nevertheless, the landlord was also at fault, even though all he did was to create the conditions under which the perpetrator was able to do harm.

In case you miss the analogy, the sexual perpetrator stands in for the Supreme Court, Katherine Harris, and everyone else you want to implicate in stealing the election. The landlord, who did not commit a crime but without whose bad decision the perpetrator would not have been able to commit the crime, stands in for Nader.

The other good news is that, on behalf of the assault victim, we obtained a substantial sum of money from the landlord. Call our anger misdirected if you will. I think it was the right result.

(I know the analogy isn't perfect. The landlord had a legal duty to repair the lock. Nader did not have a legal duty to refrain from running. My point is that I can still condemn him for a bad decision, to which I now turn.)

2. Nader's decision to run

Two errors in your comment here. First, as a side note, the Constitution does have something to do with the right to run in a primary. See, for example, the Supreme Court decision in Smith v. Allwright, 321 U.S. 649 (1944), applying the protections of the Constitution to primaries. The Court held: "When primaries become a part of the machinery for choosing officials, state and national, as they have here, the same tests to determine the character of discrimination or abridgement should be applied to the primary as are applied to the general election." The specific case was about the right to vote in a primary but the same principle would apply to the right to run.

Second, you read me as implying the exact opposite of my actual meaning. The background here is the extremely annoying habit of Naderites on DU to respond to any criticism of Nader by piously intoning that he had a right to run. This response is annoying because, AFAIK, no one on DU, in all our many Nader threads, has ever actually made the argument that he did not have the right to run. This comment is a complete straw man and a distraction from the real issues.

What I pointed out, and what the Naderites generally prefer not to acknowledge, is that, although Nader did indeed have a right to choose to run in the general election, he also had a right to choose to run in the primary instead. We should put the issue of "right to run" behind us -- it's an excuse for not considering whether he made the right choice. I can (and do) maintain that he had a right to run in the general but that it was a catastrophically wrong choice.

3. Criticism of Nader

My landlord analogy isn't perfect, but your customer buying bread is even worse. Sure, the coincidence of a customer being at precisely the wrong place at the wrong time might happen to facilitate a robbery. To invoke another concept of tort law, though, that's not reasonably foreseeable. Therefore, the customer is not at fault. By contrast, as I pointed out, "it was foreseeable and was actually foreseen that a possible effect of Nader's decision to run in the general election (instead of in the Democratic primary) would be to divert enough votes from Gore to affect the outcome, putting Bush in the White House instead of Gore."

Foreseeability makes a difference, both at law and in common sense. If you dig a deep hole on your property and leave it unguarded, and neighborhood kids come to explore it and one falls in, you're going to be held liable for the injuries, at least in New York. The difference from the bread example is foreseeability.