REVIEWS & COMMENTARY

Dissent

Sue the Bastards . . . Or Not
Summer 2003
By Daphne Eviatar

The Rule of Lawyers: How the New Litigation Elite Threatens
America's Rule of Law
by Walter K. Olson
St. Martin's Press, 2002 352 pp $25.95

Democracy by Decree: What Happens When Courts Run Government
by Ross Sandler and David Schoenbrod
Yale University Press, 2002 256 pp $30

Poor McDonald's. First, an elderly woman sues the company when she spills a cup of hot coffee. Then, the parents of overweight teenagers bring a federal case because their daughters ate too many Big Macs. Won't anyone just let the fast-food giant sell Chicken McNuggets in peace?
It's no wonder the company seems to have won the public's sympathy. Stories of supposedly frivolous lawsuits fly from headline news to late-night television barbs, illustrating yet again an American legal system that lets greedy citizens make deep-pocket corporations pay for their own mistakes. Never mind that the teenagers' case was dismissed, or that the woman who spilled her coffee actually suffered third-degree burns and permanent scarring over 16 percent of her body. Most of the facts don't make the front pages, so even liberals tend to view our legal system as a repository for whiners' complaints. This, even though the number of civil cases filed in the United States has been on the decline for the past decade.

But it's no accident that so many believe otherwise. Billions of businesses' dollars are at stake. Corporate-backed advocacy groups and conservative think tanks work hard to portray lawsuits against corporations as a symbol of a fundamental breakdown of American values. The Manhattan Institute, for example, has a special Center for Legal Policy dedicated to providing a pulpit for preaching this view.

Perhaps the best-known of these preachers is Walter K. Olson. Although not a lawyer himself, he's made a remarkable career out of bashing the profession. A senior fellow at the Manhattan Institute, he's spread the word through newspaper editorials, magazine articles, a Web site-overlawyered.com-and now, his third book. In The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law, Olson recasts the Dickensian view of shady lawyers lurking in the murky Court of Chancery into an image of modern-day trial lawyers who hungrily circle the corporate cookie jar, scheming up ways to get their hands in.

Olson isn't targeting all lawyers, though. Indeed, he has nothing negative to say about the defenders of big business. Rather, his target is the far smaller group of "trial lawyers"-those who represent injured people challenging corporations. Presenting himself as a populist-the Rush Limbaugh or Bill O'Reilly of legal critics-Olson's work is so biased and poorly documented that it's tempting to dismiss him as insignificant. But that would be a mistake, for Olson's book represents a mounting effort by the right to roll back hard-won gains made in the last four decades toward improving access to the legal system for ordinary people. That movement is now receiving a warm welcome in Washington.

In Olson's view, the problems date back to the 1960s. Before then, high costs and procedural burdens made it difficult for ordinary people to challenge corporations in court. To Olson, that was as it should be. The troubles began when misguided liberals created new legal rights and made it easier for individuals to go to court to enforce them. Responding to consumer advocates like Ralph Nader, politicians and judges changed the rules to require corporations that were sued to turn over relevant documents, for example, and to let injured people sue in the state where they lived. In 1977, the Supreme Court allowed lawyers to advertise-or as Olson puts it, to "chase business." Congress soon allowed class actions, allowing lawyers to represent more efficiently large groups of injured people who shared essentially the same claims against the same companies. While liberals hail these developments as expanding access to justice, Olson laments that they jump-started a downward slide for corporate freedom, enticing the "American legal establishment" into its current "love affair with the lawsuit."

The results, he believes, have been tragic. As consumer protection law developed, for example, courts "began to find 'defectiveness,' not just when a product was manufactured in a way that departed from its intended design (with loose bolt screws, say, or an adulterating ingredient), but also when a product's design itself was considered to fall short of what a court decided would be socially beneficial."

This is how, for instance, families of crash victims sued Ford for hundreds of deaths caused by its 1971 Pinto-the kind of case liberals champion and conservatives love to hate. The Pinto was a cute little compact that functioned just fine under pristine conditions. Unfortunately, it had a tendency to blow up when rear-ended, because Ford had placed the fuel tank dangerously close to the rear axle. Although the company realized the danger during testing, Ford was eager to roll out its cheap new car quickly; it concluded that the costs of some deadly accidents wouldn't be great enough to justify spending five to eight dollars per vehicle to fix the problem. Products liability law allowed those who suffered from that decision to hold the company responsible.

This sort of thing outrages Olson, who devotes the bulk of his book to attacking the lawyers who sue manufacturers of dangerous products, such as tobacco, guns, asbestos, and lead paint. Making the wholly unsupported claim that such cases are the "fastest-growing share of the docket," Olson mocks every one of them in a sort of back-slapping attempt to convince readers to join in the fun. With chapters titled "The Joy of Tobacco Fees," "Stacked: the Breast Implant Affair," and "The Art of the Runaway Jury," Olson presents each case as a veiled attempt at extortion by "the new litigation elite."

But it's not just lawyers whom Olson attacks. In the asbestos cases, for example, it's also the workers and unions, who should have known that asbestos caused fatal lung disease. Sure, the leading asbestos manufacturers concealed the health hazards and even prohibited doctors from telling patients they were developing asbestos-related diseases. Still, writes Olson, workers, encouraged by their unions, assumed that risk so they could have a job. Should they and their survivors, through schemes cooked up by "the wealthiest and most powerful private lawyers in the history of the world," be heard to complain about it years later?

Even lawyers who lose come in for Olson's scorn. Lawsuits against gun manufacturers, for example, have largely failed. Still, Olson is galled that anyone would try to hold manufacturers responsible for problems like the absence of safety locks on firearms or the deliberate distribution of guns to corrupt dealers who sell to violent felons. At one point, Smith & Wesson, to get out of a class action lawsuit, offered to adopt various safety measures. The National Rifle Association then boycotted the company, devastating its stock price and destroying the proposed settlement. Instead of blaming the powerful gun lobby for killing the attempt to advance gun safety, Olson lambastes the lawyers for their interference in what he believes should be an unfettered firearms market.

Although he doesn't admit it, Olson's real objection is not to lawyers, but to allowing law to meddle in the market at all. While he makes much of the high earnings of a handful of top trial lawyers, for example, his failure even to mention the multi-million-dollar salaries of corporate defenders and the executives they represent undermines the credibility of his protests. Nor is he concerned about whether claims against any of these industries actually have merit. (Many do, but Olson's one-sided portrayal based on selective news accounts makes it impossible for the reader to tell.) Olson apparently believes the legal system ought not interfere in this area at all. Lawyers are too manipulative, juries too unpredictable, and judges too unprincipled to rein them all in. It is one of the many ironies of his position that although Olson wants individuals to assume responsibility for their own conduct, he's dismissive of any notion that corporations should bear responsibility for theirs.

One might ask, are lawsuits really the best way to hold corporations responsible? Probably not. They're expensive and time-consuming, which is why most injured people never file them. The government could, as other countries do, pass more explicit product safety laws and create stronger bureaucracies to enforce them. But that's not the American way. Americans don't trust big government and are reluctant to pay for it. And the manufacturers of dangerous products lobby hard to make sure that politicians don't try to change that.

Which is, of course, how modern tort law began. When elected officials refused to regulate businesses during the Industrial Revolution, the courts finally stepped in. It's thanks to lawsuits that manufacturers stopped putting asbestos in insulation and lead in housepaint. Lawsuits are a big part of why cigarette smoking has declined in the United States, and the threat of them may yet convince McDonald's to create a healthier hamburger.

That's why the right is now pushing so hard for so-called "tort reform." Despite its progressive connotation, the proposals to limit lawsuits now circulating in Congress and promoted by George W. Bush are anything but. While some seek wholesale exemption from liability for a particular industry (gun makers, for example), most are couched as procedural tinkering to make the system more "fair." But the vast majority merely limit the ability of ordinary people to challenge big business.

The left often laments the ideological gulf between itself and even the most liberal Democrats in office. But the right doesn't have that problem. In the "tort reform" movement, the ideological right has converged seamlessly with the political right. Through seemingly innocuous changes to things like statutes of limitations, damage amounts, attorneys' fees, or pleadings requirements, Republicans are stealthily advancing the right's anti-statist libertarian ideology.

This movement is extending beyond tort law. Scholars and judges are now questioning enforcement of some of the most fundamental federal laws that grant civil rights and access to basic government services. Are federal laws actually enforceable, or do they symbolize mere "aspirations," which politicians can choose to implement or ignore at their convenience? That's the question raised by Ross Sandler and David Schoenbrod in their new book, Democracy by Decree: What Happens When Courts Run Government. Born-again conservatives-they describe themselves as former activists who saw the light-these New York Law School professors argue for a dramatic cutback in enforcement of federal law.

Sandler and Schoenbrod take aim at lawyers working for advocacy groups who file lawsuits to improve government. Although they are former environmental lawyers, the authors here target those who represent the downtrodden-prisoners, foster children, or the disabled, for example. Like Olson, they lament the liberalization of court rules in the sixties and seventies that made it easier for lawyers to sue state and local governments under federal law.

The authors focus on "institutional reform" cases, where lawyers sue government agencies for violating not merely one law, but a whole list of them. These cases usually settle, with both sides hammering out a detailed agreement that the court must approve and enforce. But herein lies the problem, the authors warn. Such plans create a "controlling group" of lawyers, who work "behind closed doors" and "wield the power of office without running for office." This is the dreaded "democracy by decree."

Schoenbrod and Sandler note the usual justification for such cases: some groups don't have political power, and in the past, local governments sometimes didn't enforce laws passed to protect them. Federal courts had to force states to desegregate their school systems and improve brutal prison conditions, for example. But the authors claims these arguments are outmoded: "Many voices previously not heard find powerful expression today in the elected and executive branches of state and local government as evidenced by the wide diversity among mayors, governors, legislators, and appointed officials-a success partly attributable to the nation's voting rights laws." Since they're unable to support that point, they add that in any event, class-action lawsuits "proved much less successful than its proponents admit, undermining the claim that people will be underserved without it."

The authors cite no evidence to support that claim, either. A systematic analysis of the impact of these lawsuits would have been useful, but Sandler and Schoenbrod don't bother. Rather, like Olson, they select and skew a handful of anecdotes to portray class-action lawsuits against government agencies as an unwarranted intrusion into the purity of the democratic process. Just as Olson sees tort law as undue meddling in the free market, Sandler and Schoenbrod view civil rights advocates and federal judges as an annoying intrusion on local politics. That is, of course, consistent with the growing conservative states' rights agenda. But rather than argue that point, these authors couch it in a spurious critique of misguided left-wing lawyers and egocentric federal judges.

Sandler and Schoenbrod base their argument on a handful of examples of court enforcement of federal legislation that supposedly created anti-democratic outcomes. The Americans with Disabilities Act, for example, required cities to eliminate architectural barriers that made many public spaces inaccessible to people in wheelchairs. But according to the authors, the law-passed only because "few lobbies in Washington are as powerful as that for the disabled community"-should never have been taken literally. Apparently, many cities didn't: they ignored the law's mandates for years. Advocates eventually sued, and federal judges ordered the cities to make specific changes-to cut curb ramps, for instance, so that people with disabilities could use the public sidewalks. To Sandler and Schoenbrod, this was an outrage. Never mind the wheelchair-bound; judges shouldn't get involved in such details of law enforcement. That's particularly true, they argue, because the ADA is an "unfunded mandate" on the states.

But that wasn't the case for the Education for All Handicapped Children Act, passed in 1975 to ensure that disabled children receive an education. In fact, the federal government provided up to 40 percent of the funding for states' educational programs. Still, the authors devote an entire chapter to condemning a case brought against New York City to enforce the law. The case, known as José P. v. Mills, began when lawyers learned that four years after the education law was passed, fourteen thousand disabled children were still waiting to be evaluated and assigned to New York City schools. The lawyers sued on behalf of the children, naming as the lead plaintiff a deaf, mute, and spastic fifteen-year-old who had never been assessed for his needs. The city, conceding it was violating the law, soon settled the case and agreed to make major changes recommended by its own expert.

To some, that would sound like a happy outcome. But to the authors, it was the start of a problem more serious than the city's educational failures. The settlement of the case created a "controlling group" of lawyers to monitor the agreement and recommend changes until the city complied. Because so many New York City children need special education, and the system is chronically underfunded, an amended version of the decree-and the "controlling group"-remains in place today. To Sandler and Schoenbrod, this is an affront to democracy. City officials should be allowed to run the educational system as they see fit-no matter that they'd proven unable or unwilling to do so in accordance with the law.

Unfortunately, the authors are so taken with the idea of uninhibited local control that they seem to have forgotten that American government includes a democratically elected Congress with the power to pass laws that apply to the states. Because Congress can't create big government bureaucracies to enforce the laws, it often grants individuals the right to privately enforce them by filing lawsuits. That's not, as the authors contend, antidemocratic: on the contrary, if there were no way to enforce democratically adopted laws, they wouldn't have very much meaning.

Despite its misleading title, this book is not about advancing democracy. Rather, the authors object to the federal government's passing laws governing civil rights and social services at all. In their view, the system worked far better when the only enforceable rights were those that protected private property: "Rights are the 'good fences' that make 'good neighbors,' " they write. Then along came the sixties and seventies, when Congress began passing laws and judges issued rulings creating "soft rights"-the kind where government was actually required to do something for the public-such as providing an education or a humane prison system. These, write Sandler and Schoenbrod, are not really rights, but "aspirations." Sure, Congress can pass these laws, but courts have no business enforcing them.

Aside from the principled objection to considering congressional mandates as mere "puffery," as the authors call them, this view has serious practical consequences. Take the recent tragic case of Faheem Williams, the seven-year-old found dead with his two half-starved brothers in a relative's basement in Newark, New Jersey, last January. Although the family was supposed to be under the watch of the state's child welfare agency, state child welfare workers had such absurdly high caseloads that they weren't able to keep track of, let alone visit, the children in their care; they hadn't seen the Williams children in eighteen months. That was a violation of federal law. But that's just the sort of detailed requirement that Sandler and Schoenbrod would have the federal courts ignore.

Unfortunately, an increasingly conservative federal judiciary and legislature may be inclined to see it their way. And so long as the dilemma is presented as one about the meddling of intrusive judges and lawyers, few-even on the left-are likely to object. That's unfortunate. For the questions these books raise are not about lawyers at all. They are fundamentally about who will have access to the justice system, and whether courts will continue to enforce the law in all of the cases that get there.

Daphne Eviatar is a Brooklyn-based writer and lawyer and a contributing editor at the American Lawyer.

©2003 Dissent