Hello again, it’s Mr. TGH. Hope you had a good week.
You know what we do here, and you know how we do it. Torah, Hollywood, the two coming together in spectacular kaleidoscopic fashion. You can subscribe here and see past posts here.
So let's get down with some tort laws, shall we?
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Lest the Torah seem just like Biblical stories of grand historical sweep with little relevance to the sundry matters of everyday life, along comes this week’s portion of Mishpatim to say, well boys, you've been getting it all wrong.
The portion, despite arriving not long after the grandeur of last week's Ten Commandments, deals with the myriad cases of personal damages and accountability, often packing an entire semester's worth of law-school complexity in a few slick words.
So basically it’s a group of Tweets.
Here's one example. "If a man should open a pit or dig one and not cover it and a work animal falls in, he must compensate the owner,” (Exodus 21:33/34).
A simple, common-sensical rule. But rivers of law are designed, debated, discarded and dug up again using this verse — entire issues of financial and personal accountability flowing from this simple sentence.
One such stream has always stood out to me. The Mishnah — the third-century-era set of oral derivations of the law and foundation of the Talmud — documents an intriguing disagreement, based on this very verse, in the third chapter of the tractate of Bava Kamma. It states that someone who drops a pitcher in a public place and it breaks, either spilling out water or shards, is responsible for the damage that it causes.
Fair enough. This accords with the law and with logic. You broke it, you bought it — in this case, someone else's bills.
But then a sage, Rabbi Judah, enters stage left and disagrees. "If he intended to do it, he is liable," Rabbi Judah says. "If he didn't, he is exempt.”
Intent seems like an odd threshold here — what does state of mind make a difference to the injured party? And more important, what does the intent have to do with the breaking? Presumably most people don’t walk down the street intentionally smashing their own pitchers. Why would this be the only situation in which he’s liable?
The Talmud, similarly troubled, arrives to explain that the “intent” specifically referred to is if the offending party intended to profit from the pieces or the water. That is, Rabbi Judah is saying that if the alleged violator didn't intend to profit from the damaging waters after they were unleashed, he's not liable when someone comes along and hurts themselves in them. If he did, then he is.
And what difference does that make? Well, the Talmud explains, it prevents the offending party from claiming he has abdicated ownership of the water. After all, someone who intends to profit isn’t exactly abdicating.
OK, so this solves the technical issue — without the profiteering, it’s not his. But it doesn’t do much for the moral one. Why would someone be able to just wipe their hands of damage that they distinctly caused?
As I contemplated the answer another instance came to mind in which water in the public sphere did some pretty serious damage, and then prompted various attempts to make sure the offending parties were held accountable. In fact, the situation lines up almost perfectly with the Julia Roberts 2000-era investigative drama “Erin Brockovich.”
The movie, you may recall, was based on a true story in which the title character, a brash legal clerk, starts poking around on how the utility company PG&E for many years in the California desert town of Hinkley put a toxic type of chromium into the groundwater to help run its factories better. Over the years the contaminated water caused hundreds of people to suffer major health problems, some fatal. Then the company tried to cover it up.
As Brockovich reminds her law-firm boss in this little Steven Soderbergh gem, PG&E is a $28 billion company, and they clearly profited from all this water damage. It’s a textbook illustration of Rabbi Judah’s case.
But I was interested in it for another reason. At a key moment in the film, Erin’s boss decides to go for binding arbitration rather than a series of trials. The reason is simple: PG&E could slow-play the trials so that pretty much none of the plaintiffs see any money. Binding arbitration avoids all that.
PG&E of course doesn’t want to pay. So they say they’ll go along with the arbitration on one condition: 90% of the plaintiffs need to agree to it. There are 634 such plaintiffs, mind you, which means some 570 different aggrieved parties have to come together to agree. PG&E’s representatives thinks this is a slam-dunk gambit for them. They’re banking on people’s disunity, their fractiousness, their greed and selfishness. They’re betting that the Hinkley residents would act like them. And why not? That’s the way they see the world, so why wouldn’t others see it the same way.
Erin and her partner call a town hall meeting, hopeful but a little skeptical they can convince the residents. Why would people with such different interests all come together in unity? Everyone had different levels of damage, different needs for admissions of guilt, differing desires to have their day in court.
And sure enough, there is much infighting and pushback, little agreement of any sort. But as the meeting unfolds Erin and her partner makes their plea for people to come together. And somehow, by the end of the night, all 634 plaintiffs — every single one of them — agrees. They’ll all go for binding arbitration.
There’s a subtle lesson here, and of course it’s not just about accountability. It's about community. PG&E easily would have gotten away with it if people had gone their own way. They were in fact assuming that’s what would happen. But a sense of collective responsibility — of coming together as a cohesive whole — was the bulwark against this. It neutralized a $28 billion company. Each resident puts their faith in the other. And even though they’re giving something up, they were willing to do it for a greater good. And in the end this is exactly what they get.
I can’t help feeling like this throws some light back on Rabbi Judah. Profitability mattered to him as a factor, I would suggest, not because of a simple technical reason of whether it was the offender’s jug anymore. It mattered to him because trying to profit from something broken — trying to pull a PG&E — meant you were at heart disbelieving in the power of community. It meant you had an every-man-for-himself disunity. And that required you to pay.
Not trying to profit, on the other hand, was saying the opposite. It was saying you didn’t believe in the cynicism of exploiting others. It was saying you did believe in a sense of community. And that entitles you to a benefit of the doubt of not needing to pay.
This, in the end, feels like the lesson of Mishpatim. It’s not just a series of accountability laws, who owes whom what when someone breaks something. Or rather, it is about redefining accountability, such that it’s less about a simple set of transactional damages and more about a sense of shared responsibility. We pay others or don’t pay others based on the good of the larger group — based not on what’s good for the 1 but the 634.
A couple of other quirky laws follow in this week’s portion, and seeing the pit clause through this lens I think helps make sense of them too. Several verses later we’re told about a man whose animal grazes in a neighbor’s field being held responsible to pay, as damages, the best of his own field. Odd, wouldn’t it just be for the amount of the damage caused?
Yes, if the payment was about strict damages. But it’s not — it’s about making sure everyone in the community is taken care of. If that field is worth ten times more than the offending party has in his bank account, he’s not required more to pay than he can afford — he just gives the best of what he has. And if it’s worth a lot less, then, well, he doesn’t get away with paying the low amount — he pays more, the rich taking care of the poor. Community.
Shortly after, a new verse offers another example. It says that a person who is watching the animal of another when it is injured can come and swear he had nothing to do with the damage and is absolved from paying. Again, strange – it was under his watch, why shouldn’t he pay? But the text is saying this is a community, and if a person acts in an upstanding fashion and takes a solemn oath he had nothing to do with what happened, we don’t punish him for it.
To a certain kind of exacting mindset, these may seem like strange bends in the law. But Julia/Erin, for all her justice-seeking, would probably agree with them.
As she’s imploring the people of Hinkley to testify at a central moment in the film, she underlines her philosophy of what accountability is really all about — not specific tit-for-that damages, but the spirit of community. "See, the thing is, it doesn’t matter whether you win, lose or draw here,” she says to one of the residents. “What matters is you were lied to. If for no other reason, you all have to come together in a courtroom and say that.”
Thank you for reading.