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Why Lawsuits are Good for America: Disciplined Democracy, Big Business, and the Common Law

Carl T. Bogus
Copyright Date: 2001
Published by: NYU Press
Pages: 265
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  • Book Info
    Why Lawsuits are Good for America
    Book Description:

    Judging by the frequency with which it makes an appearance in television news shows and late night stand up routines, the frivolous lawsuit has become part and parcel of our national culture. A woman sues McDonald's because she was scalded when she spilled her coffee. Thousands file lawsuits claiming they were injured by Agent Orange, silicone breast implants, or Bendectin although scientists report these substances do not cause the diseases in question. The United States, conventional wisdom has it, is a hyperlitigious society, propelled by avaricious lawyers, harebrained judges, and runaway juries. Lawsuits waste money and time and, moreover, many are simply groundless.Carl T. Bogus is not so sure. In Why Lawsuits Are Good for America, Bogus argues that common law works far better than commonly understood. Indeed, Bogus contends that while the system can and occasionally does produce wrong results, it is very difficult for it to make flatly irrational decisions. Blending history, theory, empirical data, and colorful case studies, Bogus explains why the common law, rather than being outdated, may be more necessary than ever. As Bogus sees it, the common law is an essential adjunct to governmental regulation - essential, in part, because it is not as easily manipulated by big business. Meanwhile, big business has launched an all out war on the common law. Tort reform - measures designed to make more difficult for individuals to sue corporations - one of the ten proposals in the Republican Contract With America, and George W. Bush's first major initiative as Governor of Texas. And much of what we have come to believe about the system comes from a coordinated propaganda effort by big business and its allies. Bogus makes a compelling case for the necessity of safeguarding the system from current assaults. Why Lawsuits Are Good for America provides broad historical overviews of the development of American common law, torts, products liability, as well as fresh and provocative arguments about the role of the system of disciplined democracy in the twenty-first century.

    eISBN: 978-0-8147-6957-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Acknowledgments
    (pp. xi-xii)
  4. Introduction
    (pp. 1-5)

    Imagine three hospital patients considering surgery. Their surgeons discuss with each of them the risks and benefits of the procedures. Every surgery entails risk. The patient may have an adverse reaction to the anesthesia; his or her system may fail under the trauma of the surgery; there may be uncontrollable bleeding, bacterial infection, a virus in the blood the patient receives by transfusion. And since the operation will be performed by human beings, there is always the risk of error. In their conversations with their patients, the surgeons describe the greatest risks but not all the risks. The list is...

  5. 1 Why Tell Tales?
    (pp. 6-21)

    On Monday, July 27, 1994, Senator John C. Danforth of Missouri rose on the floor of the Senate to explain to his colleagues, and via C-Span to the nation at large, why he believed it was critical to enact legislation known as the Products Liability Fairness Act, which was designed to displace all state products liability laws with a uniform but more restrictive federal law. To the casual observer, it may have seemed that the bill was destined to become law. It had been written by five senators—two Republicans, including Danforth, and three Democrats. It had garnered forty-four cosponsors...

  6. 2 War on the Common Law
    (pp. 22-41)

    By the time Danforth told his version of the Depo-Medrol case to the Senate on that Monday in July 1994, the stories about the clairvoyant, the cat burglar, and the man in the phone booth had became popular legends of an Alice in Wonderland world of rapacious lawyers, dippy jurors, and Mad Hatter judges.¹ Yet everyone working in the tort reform area knew the stories had been debunked.

    Reagan had gotten away with his stories because he was Ronald Reagan. The American people accepted Reagan as sincere and well intentioned. Quayle’s escaping unscathed had proved something else, however. It is...

  7. 3 The Third Branch of Government
    (pp. 42-65)

    When, in the early seventeenth century, small bands of Europeans set out on dangerous voyages across the Atlantic to establish tiny settlements on the shores of North America, they could not know that the forces propelling them across the ocean would combine with the circumstances awaiting them in such a way as to produce concepts of law and government radically different from any the world had ever known. A new idea was to be born: the separation of religious and secular spheres of authority. This concept of differentiated spheres of authority would lead to a parallel idea of dividing powers...

  8. 4 Disciplined Democracy and the American Jury
    (pp. 66-101)

    The jury system was both an ancient and a central feature of the common law heritage. Indeed, it is not too much to say that within the common law world, the jury is one of the institutions most closely associated with the development of civilized society.

    Scholars debate whether the jury system was brought to England by William the Conqueror in 1066 or whether it previously existed in some form in England.¹ Either way, before trial by jury, disputes in England were resolved by trial by ordeal, trial by battle, or a process called “wager of law,” where a litigant...

  9. 5 The American Common Law System
    (pp. 102-137)

    It is, of course, true to the point of banality to say that any large system will inevitably produce successes and failures. The health delivery system cures disease and saves lives, but it will inevitably cause illness and death; the safest transportation system is air travel, but some planes will crash; the educational system works well for some students but not for all. It is, therefore, not possible to demonstrate how well a system works by evaluating a single outcome. And just as it is not possible to prove that a school system is good or bad by pointing to...

  10. 6 Who Regulates Auto Safety?
    (pp. 138-172)

    My principal claim in this book—that lawsuits are good for America because the common law serves an essential regulatory function—will strike some as outdated. After all, since the New Deal we have been accustomed to thinking of the regulation of commercial activity to be, quite necessarily, the province of administrative agencies. We can eat in a restaurant confident in the knowledge that it is periodically inspected and licensed by local regulators, that it serves milk that comes from a dairy supervised by state regulators and meat that is approved by the United States Department of Agriculture (USDA). We...

  11. 7 The Three Revolutions in Products Liability
    (pp. 173-196)

    On a clear and dry summer day in 1911, Donald MacPherson agreed to take a sick neighbor to the hospital.¹ MacPherson, who engraved and sold gravestones and other monuments in a small town in upstate New York, was successful enough to own a Buick, which he had purchased just two months earlier from Close Brothers, the local Buick dealer. MacPherson did not know it, but he was about to have an accident that would launch not one but three great legal revolutions, with profound implications for American society.

    These were the early days of mass production of the automobile. A...

  12. 8 The Common Law and the Future
    (pp. 197-220)

    On January 8, 1998, thePhiladelphia Inquirerreported that lawyers for the City of Philadelphia were prepared to institute an action against gun manufacturers.¹ It was, at least publicly, a new idea. According to the article, the complaint would claim that gun manufacturers had created a public nuisance by saturating Philadelphia with guns. “The approach mirrors that taken by a group of state attorneys general who negotiated a groundbreaking settlement with the tobacco industry,” noted the newspaper.

    This report that Philadelphia was considering such an action received national attention. Not only is Philadelphia the fifth largest city in the nation,...

  13. Notes
    (pp. 221-258)
  14. Index
    (pp. 259-264)
  15. About the Author
    (pp. 265-266)