Editore"s Note
Tilting at Windmills

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October 5, 2005
By: Kevin Drum

THE LAW IN SHAMBLES....I've now read my second pamphlet from the good folks at Prickly Paradigm Press, Thomas Geoghegan's The Law in Shambles. His argument is an important one: conservatives complain endlessly about the rising number of lawsuits in America, but in reality they have no one but themselves to blame. Why? Because it's the inevitable result of cutbacks in corporate regulation:

It galls me to hear the President rail about trial lawyers suing hospitals. Why is it that the trial lawyers bring these suits? Because the hospitals depart from a standard of care, often set out in federal regulations, which the President of the United States has the duty to enforce.

....If the President wanted to cripple the lawyers, he might consider, for example, setting nurse to patient ratios. Of course he won't. Yet as hospitals cut back on nurses, they end up violating more standards and regulations.

Result? More and more patients die. Bring on the trial lawyers! For when the rule of law really is in shambles, that's what people get. When we have no contract, we get tort. And when we have no trust law, we get tort. And when we deregulate, we get tort, as well. One can calculate the rise of tort from the drop in the numbers of those who simply watch over us, from various civil servants to the nurses on the floor.

Roughly speaking, most European countries have adopted a regulatory model in order to keep corporate abuse in check. There are drawbacks to this model, but it does result in relatively few lawsuits. Conversely, in the United States, business-friendly conservatives have fought to keep regulation light. This often leaves lawsuits, which are inevitably less predictable and more arbitrary than regulation, as the only avenue that ordinary citizens have for checking corporate abuse.

But Geoghegan points out that it's not just inadequate regulation that has led to the rise in torts. It's also the demise of unions. In the past, he says, employee grievances from unionized workers were mostly handled via arbitration, which is quick and easy. But with arbitration mostly gone, largely replaced by a mass of confusing and poorly enforced civil rights legislation, the only remedy an employee has if she's unjustly fired is a lawsuit, and this is fundamentally a more scorched-earth process than old style arbitration:

It is not so much about conduct as state of mind. The issue is no longer whether the employer fired the plaintiff for "just cause," whatever that might now mean in a world of "employment at will." What the plaintiff must do is show that the employer acted to harm him.

....In post-union America, this is the legal system we now have. It forces us to cast legal issues in the most subjectively explosive way, i.e., "racism," "sexism," to get around the fact that we no longer can deal objectively with "just cause." Do I regret I am part of it? Yes. Are my clients often full of hatred? Yes.

Geoghegan argues that as tort has become the primary means of settling disputes, it's necessarily also become more politicized, more expensive, and far more complex. As a result, respect for juries has diminished, respect for judges has diminished, and respect for the rule of law itself has diminished. We have created a system in which often the only way left to hold corporations accountable is via furious battles to the death in courtrooms around the country, and nobody is happy with it.

I'm not sure I agree with every argument Geoghegan makes, but it's a provocative thesis that's written in a wonderfully accessible, polemic style. And it's short! And only ten bucks!

Recommended.

Kevin Drum 12:54 AM Permalink | Trackbacks

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