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Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society

THOMAS F. BURKE
Copyright Date: 2002
Edition: 1
Pages: 277
https://www.jstor.org/stable/10.1525/j.ctt1ppkjg
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  • Book Info
    Lawyers, Lawsuits, and Legal Rights
    Book Description:

    Lawsuits over coffee burns, playground injuries, even bad teaching: litigation "horror stories" create the impression that Americans are greedy, quarrelsome, and sue-happy. The truth, as this book makes clear, is quite different. What Thomas Burke describes inLawyers, Lawsuits, and Legal Rightsis a nation not of litigious citizens, but of litigious policies-laws that promote the use of litigation in resolving disputes and implementing public policies. This book is a cogent account of how such policies have come to shape public life and everyday practices in the United States. As litigious policies have proliferated, so have struggles to limit litigation-and these struggles offer insight into the nation's court-centered public policy style. Burke focuses on three cases: the effort to block the Americans with Disabilities Act; an attempt to reduce accident litigation by creating a no-fault auto insurance system in California; and the enactment of the Vaccine Injury Compensation Act. These cases suggest that litigious policies are deeply rooted in the American constitutional tradition. Burke shows how the diffuse, divided structure of American government, together with the anti-statist ethos of American political culture, creates incentives for political actors to use the courts to address their concerns. The first clear and comprehensive account of the national politics of litigation, his work provides a new way to understand and address the "litigiousness" of American society.

    eISBN: 978-0-520-93837-3
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-x)
  4. INTRODUCTION
    (pp. 1-21)

    Although Alvin Laskin grew plants for a living, no one would ever accuse him of being an environmentalist. Yet Laskin’s entrepreneurial efforts managed to create employment for many environmental scientists—and hundreds of lawyers.

    In the early 1970s, when Laskin’s Ohio nursery business slumped, he found a more lucrative trade: used oil. Laskin bought the oil from factories and sold it for a variety of uses, particularly dust control. Most of Laskin’s old oil presumably ended up with his customers, but hundreds of thousands of gallons of the stuff were inadequately stored in corroded tanks and ponds. By the late...

  5. CHAPTER 1 THE BATTLE OVER LITIGATION
    (pp. 22-59)

    Litigation is under siege from many directions, but as I argued in the introduction, some attacks turn out to be more significant than others. While tort reform, for example, are aimed simply at reducing the volume and cost of litigation, other antilitigation efforts can eradicate whole species of lawsuits. It is these more sweeping campaigns, in which policy makers are led to ponder the merits of litigation versus other problem-solving devices, that teach the most about the roots of America’s distinctively litigious public policy style. In focusing on two of the most visible components of the attack on litigation, tort...

  6. CHAPTER 2 THE CREATION OF A LITIGIOUS POLICY The Americans with Disabilities Act
    (pp. 60-102)

    The problems of people with disabilities are immense. Americans with disabilities are the largest and poorest of all minority groups in United States. For most, welfare payments or support from a family member is the chief source of income. Fewer than one in three has a job, though most say they would like to work. Thirty percent of people with disabilities say they have encountered job discrimination. In 1998, 34 percent had an income of $15,000 or less, compared to only 12 percent the nondisabled population. One-fifth had not completed high school, more than twice the proportion among the nondisabled....

  7. CHAPTER 3 A FAILED ANTILITIGATION EFFORT The Struggle over No-Fault Auto Insurance in California
    (pp. 103-141)

    In a purely quantitative sense, anyone intent on limiting litigation in the United States might sensibly begin not with asbestos, or cigarettes, or breast implants but with the mundane car accident. From fender benders to multicar catastrophes, millions of Americans crash their vehicles each year. Roughly four million of them are injured, and according to one estimate, about two million seek compensation through tort litigation.¹ Motor vehicle accidents account for the lion’s share of cases in the personal injury tort system in the United States. About two-thirds of all claims, three-quarters of all lawyer’s fees, and three-quarters of all payouts...

  8. CHAPTER 4 A SHOT OF ANTILITIGATION REFORM The Vaccine Injury Compensation Program
    (pp. 142-170)

    On the morning of July 3, 1981, Julie Schwartz, then a four-month-old, was vaccinated for diphtheria, pertussis (commonly known as “whooping cough”), and tetanus. The so-called “DPT” vaccine that Julie received had all but wiped out diseases that in the past were a major cause of death among American children. DPT vaccination was required by law in most states and was routinely administered to young infants. Julie had gotten two previous injections of DPT without any noticeable reaction. But several hours after the third injection Julie went into a seizure; her whole body shook for more than a half-hour. She...

  9. CHAPTER 5 UNDERSTANDING THE LITIGATION DEBATE
    (pp. 171-204)

    When George H. Bush proclaimed in a 1992 presidential debate that Americans were “suing each other too much and caring for each other too little” he was echoing a common theme.¹ For many commentators, litigation signifies a rupture in the moral fabric of American society. Selfishness and greed, it is said, are eroding the norms of responsibility and caring on which healthy community life is based. Stories of litigiousness run amok, in this view, are parables about the decline of community values. When lawsuits are filed over playground squabbles among children, or injuries suffered in a weekend basketball game, or...

  10. NOTES
    (pp. 205-260)
  11. INDEX
    (pp. 261-267)
  12. Back Matter
    (pp. 268-268)