|
Book Review: Wall Street Journal
In a Class by Themselves
David A. Price
January 21, 2003
"The United States is experiencing substantial increases in overweight and obesity that cut across all ages, racial and ethnic groups, and both genders [and] has reached epidemic proportions." It sounds like a line from a Surgeon General's report. It is, instead, from a class-action lawsuit filed in the Bronx in August against McDonald's Corp. The fatuous lawsuit, no pun intended, claims that McDonald's "enticed" children to eat too much fast food "without disclosing the detrimental health effects thereof."
That attorneys could file such a lawsuit with a straight face, and without the slightest fear of sanctions, merely hints at the degree of dysfunction in our civil-justice system. In "The Rule of Lawyers" (St. Martin's, 358 pages, $25.95), Manhattan Institute senior fellow Walter Olson lays out an entertaining, but disturbing, chronicle of class-action abuses. As his account makes clear, the loosening of rules by judges over the past several decades has brought about a system that no one voted for and one that hardly anyone would defend (unless, that is, his livelihood depended on it).
Readers of this newspaper -- and of Mr. Olson's Web site, Overlawyered.com (http://www.overlawyered.com/) -- will be familiar with the outlines of the situation. Civil suits in some jurisdictions have become a lottery, with juries handing down multimillion-dollar awards against out-of-state corporations, even when the plaintiffs alleged actual damages of $50,000 or less. Things have become so bad that, during the 1990s, litigation fears dried up the supply of crucial raw materials for medical devices, such as silicone and polyester yarn, prompting Congress to create a modest exemption from liability. One major American company after another has been bankrupted by asbestos lawsuits, many filed on behalf of plaintiffs who were never sick.
Another victim of such litigation, Mr. Olson believes, is the separation of powers. While legislators theoretically have the sole authority to enact laws, increasingly it is class-action lawyers who are doing so in effect -- the main difference being that the legislators make far less money. ("Other than airplanes and helicopters," Mr. Olson quotes one lawyer saying, "I don't have a flamboyant lifestyle at all.")
Class-action lawsuits have become an appalling abuse of the legal system.
Thus Mr. Olson sees the class actions brought in 1998 against gun makers -- demanding gun locks and new curbs on distribution -- as nothing less than an end-run around Congress, statehouses and the Bureau of Alcohol, Tobacco and Firearms. Supporters of the suits saw them the same way, though they regarded this as a plus rather than a minus: The suits would break through "partisan gridlock." That, as Mr. Olson puts it, is just a lofty way of saying, "We couldn't round up the votes to win."
A major force behind the "rule of lawyers" is the current form of class-action suits. The 1970s saw class actions extended to include "mass torts" involving thousands of claimants with widely different types of claims. The advent of "opt-out" actions meant that consumers would be considered part of a class unless they took the initiative to exclude themselves. The result of these and other liberalizations, Mr. Olson notes, is that a class-action suit is an especially effective form of intimidation. Once a judge agrees to certify a lawsuit as a class action, the stakes become very high -- high enough that the defendant can scarcely afford the risk of a trial, whether innocent or not.
The power of the class-action lawyer is further magnified by the cooperation of television news producers. Defendants regularly face TV news stories that are "investigative" in theory but that are gift-wrapped and handed to the producers by plaintiffs' lawyers in reality. Often the segments feature the lawyers' own paid experts (without, of course, describing them as such). Everyone knows about the GM pickup rigged to ignite on camera for an NBC "Dateline" episode; what is striking is the extent to which Mr. Olson is able to document such shenanigans in other stories.
Mr. Olson's engaging prose, for all its charm, is propelled by a sense of outrage at the abuses he describes: He slams his opponents onto the mat, lets them rise slightly in a daze and then slams them down again, round after round. It comes as a surprise, then, that he advances relatively few policy suggestions. To curb extravagant and irrational awards, he proposes letting the jury decide only the existence of liability and then leaving the amount of damages to be set by the trial judge. While attractive in some ways, this model arguably runs afoul of the Seventh Amendment's broadly worded guarantee of a right to a jury trial in civil cases. He favors a public agency to watch over the litigation industry, though he is vague about its powers other than collecting information.
Perhaps Mr. Olson's parsimony was based on a desire to avoid an overly wonkish book. Yet the moment seems ripe for talking about policy. Congress has been enacting tort reforms industry by industry for the past eight years or so: small plane makers one year, vaccine makers another. The new Congress, with both houses held by the GOP, will surely consider broader measures, from liability caps to "loser pays" rules for legal fees. Deciding how to curb the abuses while respecting the rights of bona fide victims will be one of Congress's toughest challenges. That, and struggling against the sinister, autonomy-sapping messages of fast-food chains.
Mr. Price is a writer in Washington.
|
