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October 26, 2006

"Framing Texaco"

[Originally appeared in The American Spectator, February, 1997]

It happened that the New York Times broke the Texaco tapes scandal the same week West Coast voters passed the California Civil Rights Initiative, and for many fans of affirmative action the combination of news stories was enough to renew their faith in the Almighty. “The Texaco crisis is God’s response to California’s Proposition 209,” declared the Rev. Joseph Lowery, president of the Southern Christian Leadership Conference. Boston Globe columnist Derrick Z. Jackson agreed: “Somebody up there is trying to keep white people honest.”

Miraculous or not, the Texaco case followed a script seen many times before. The first charges of bigoted remarks cleared the room: once managers stood accused of that offense, virtually no one took an interest in going to bat for them, least of all the company, which from first day to last kept up a flow of anguished apologies that seemed only to goad its critics into raising their demands. Even the revelation that many of the charges were false did nothing to alter the tone on either side.

The uniformity of coverage and opinion was in many ways a tribute to the Times and its reporter Kurt Eichenwald, who kept the pressure up day after day with relentlessly accusatory coverage. And it worked: in less than two weeks, paper and reporter managed to bring one of the nation’s largest businesses to its knees and terrify the employer community into renewing its flagging commitment to “diversity,” not to mention break the momentum of CCRI supporters.

That the reports contained serious inaccuracies would have been troubling enough, given the explosive status of racial matters in America today. But the real scandal of the Texaco story is how little actual investigation the Times did and how avidly it appears to have accepted a prepackaged account concocted by shrewd plaintiffs’ lawyers. Those lawyers are now apparently on their way to cashing in fees that may amount to tens of millions of dollars from Texaco’s $176 million settlement -- and it doesn’t seem to matter to the Times or anyone else that to get this money they fed the paper a story which later turned out to be full of falsehoods.

Eichenwald broke the story of the tapes on November 4, but the story of how he got the story begins well before that. For some years, lawyers have been suing the giant oil company on behalf of a number of black employees around the country, filing demands for company documents and engaging in other “pre-trial” activities. Last fall, dismissed Texaco manager Richard Lundwall apparently took it upon himself to bring to the lawyers secret tape recordings he’d made, in which his colleagues discussed many topics -- among them how to respond to the lawyers’ document demands. The recordings’ sound quality was very poor in many places, but some of the passages that were relatively clear showed managers talking about withholding or even destroying documents that would have been of interest to the plaintiffs.

That sort of conduct could constitute a serious legal offense, so the story was definite news, albeit perhaps of an inside-page variety. But the transcript of the tapes that the lawyers helpfully furnished to Eichenwald contained a second and far more explosive tale. According to these transcripts, which purported to explicate various passages on the tape that were hard to make out by ear, managers had referred to black employees as “f---ing n---ers” and “black jelly beans.”

The alleged racial epithets took a somewhat interesting news story and blew it wide open. Eichenwald quoted one of the black plaintiffs in the suit as saying the remarks “sounded like a Klan meeting.” In subsequent articles, he quoted Wade Henderson, head of the Leadership Conference on Civil Rights, as saying the tapes were “the functional equivalent of the Rodney King video” and made the case “far more significant than most complaints of employment discrimination.”

After the first day, both the news and editorial sides of the Times dropped modifying words like “alleged,” and began reporting the charges as simple fact; other papers followed suit. The paper held up for special contempt retired Texaco treasurer Robert Ulrich, who had supposedly used the “f---ing n---ers” epithet; it repeated this profoundly defamatory assertion again and again, with nary an “allegedly” in sight. Texaco promptly stripped Ulrich of his health benefits, as well as disciplining other employees. Yet there were plenty of questions that should have occurred to editors at the Times:

-- Sound quality. Journalists are supposed to know the quality of pocket audiotapes is dubious. These tapes were especially bad, having been made while hidden in the renegade manager’s clothing. And the most sensational material seemed to come from the ambiguous if not inaudible sections.

-- Context. One of the few journalists who sat down in the story’s early days and actually listened to the tapes was Wall Street Journal columnist Holman Jenkins, who not only found the alleged slurs inaudible but also noted Ulrich “remarking with satisfaction on the advancement of women and minorities” and heard discussions of how the company could best recruit blacks while laying off white employees. Jenkins later found a lawyer who’d crossed swords in an earlier case with the plaintiffs’ lead attorney, and said that in that case also his opponent had come up with a self-serving and disputable transcript of taped conversations.

-- Mysterious candy references. Eichenwald presented as racial slurs the tapes’ numerous references to jelly beans, black and of other colors; yet those familiar with corporate diversity training recognized the imagery as that used by Roosevelt Thomas, Jr., a widely known diversity expert who had instructed Texaco executives.

-- Privacy issues. The Times straightfacedly reported Lundwall’s claimed motive in making the secret tapes (to insure that his minutes were accurate) and prudently refrained from raising questions about the role of covert surveillance as a litigation tactic.(1)

Texaco finally obtained a copy of the tapes from the government and gave them to Carl Ginsburg, the audio-enhancement expert who deciphered the FBI’s recordings of the Branch Davidians. After applying enhancement techniques to the tapes, he reported back that the alleged epithets were nothing of the kind. The “f---ing n---ers” remark, which was uttered amid a discussion of winter holidays, turned out to be a reference to St. Nicholas. Ginsburg said that the attorneys’ transcript was riddled with other errors as well. One widely condemned remark -- “you know how black jelly beans agree” -- was instead “we don’t have black jelly beans and green,” he reported. Another supposedly odious remark about how the black jelly beans appeared “glued to the bottom of the bag” came from the secret taper himself, and appeared to deplore, rather than ridicule, minorities’ trouble in winning promotions.

Aside from a highly obscure passage supposedly involving St. Nicholas’s beard -- not on its face racially oriented and almost certainly a corruption of an original statement -- the only crumb remaining for the outrage-mongers was pretty mild: Ulrich’s “I’m still having trouble with Hanukkah -- now we have Kwanzaa.”

Oddly, once the company had evidence in hand dramatically calling into question the credibility of the Times’s reporting, it then proceeded to make that evidence public by releasing it to the Times itself. A source close to the company believes part of the explanation was that the company is a local institution -- it has been in Westchester County for twenty years and was in New York City before that -- and feels it’s “going to have to live with this newspaper.”

The Times did run a reasonably prominent article on the second transcript November 11 -- but put that article in only some of its editions. The next day, a tiny page-two item advised readers who missed the previous day’s article that they could write in for it. When the Times omits a story from some editions, even a light human-interest story, it often re-runs it the next day at the risk some readers will see it twice. But it didn’t bother to do so with an article implicitly retracting large parts of its most sensational civil-rights story of the year. Among readers who get early editions of the Times and never saw the corrective piece are many in the New York suburbs, including Texaco’s own Westchester County, and in places like Washington, D.C.

Standard journalistic procedure, when a secondary story begins to emerge about a newspaper’s coverage, is to assign that second piece to another reporter. But the Times left Eichenwald to report on the reaction to the revelations about his own misreporting. His new articles proceeded to push the theme that the new revelations really weren’t important. “With or without” the epithet, he quoted Wade Henderson as saying, it was the overall episode that was damning. The changes “made little difference” to civil-rights groups or plaintiffs’ lawyers, he wrote in the paper’s “Week in Review.” The plaintiffs’ lawyers variously called the new transcript “much ado about nothing” and said it changed things not “one iota.” This was of course wildly self-serving on all sides, yet it soon was in place as the official line: it didn’t matter after all whether or not white managers used phrases like “f---ing n---ers.”

The rest of the American press did no better. The Wall Street Journal, which had trumpeted “racist remarks” in big headlines, buried its correction in the sixth paragraph of a related story. Business Week found space for a piece headlined “Get Serious About Diversity Training,” but none to mention that its previous week’s report of “blatantly racist” epithets had been in error. Indeed, four days after the new transcript the Associated Press was again referring to “racial slurs” by Texaco executives. The November 18 Wall Street Journal reported that the “derogatory comments” on the tapes had “shocked” most whites while confirming black fears. Everyone had agreed to proceed as if the original charges were true.

So -- readers must wonder -- can Mr. Ulrich sue for defamation, and wind up replacing the Sulzbergers as owners of the paper of record some day down the road? Probably he’ll run into trouble if he tries this, and one major reason is that -- it’s one of the nastiest secrets of litigation journalism -- papers can print all sorts of defamatory allegations with impunity, including those that later prove false, so long as those allegations have previously appeared in official court documents. In this instance, lawyers had filed the transcripts the Friday before Eichenwald’s Monday morning piece.

The doctrine granting reporters immunity in printing the contents of court documents is an extraordinarily convenient one for lawyers, of course, because they naturally enjoy so much of a hand in shaping what will become official court documents: they draft affidavits, elicit deposition testimony, describe their opponents’ supposed conduct in the course of filing complaints, and so on; they also arrange for the transcribing of recordings. It makes them the perfect negative source: not only does a lot of material damaging to their opponents fall into their hands naturally, but they can generate more such material simply by arranging for factoids to make their way into a court record. Once they do, their friends in the press can print them.

USA Today, virtually the only paper to question this kind of manipulation in the Texaco case, asked Times business editor John Geddes whether the paper had been “used by plaintiffs in the case to promote a faulty but more inflammatory transcript.” His response? “Not unless the court was used.” You might think it had never occurred to the business editor of the New York Times that lawyers interested in promoting dubious information in the press might long ago have discovered the best carom-shot technique for getting it there: promote it in a court paper first.

“Genuine or not,” Newsweek said with fine indifference when publishing the Hitler diaries hoax, “it almost doesn’t matter in the end.” Maybe, as Derrick Jackson of the Globe would have it, the Texaco case signifies that someone up there is trying to keep white people honest. Too bad no one down here is doing the same for trial lawyers and journalists.

(1.) There was a wider story here too, about the epidemic of secret taping by litigious employees in the American workplace. A few years back a West Coast lawyer who represents fired employees suing their bosses told the Wall Street Journal that about one in five of his clients tell him they’ve secretly taped conversations. Many courts have encouraged the trend by letting workers pocket awards based on covert taping (“exclusionary” rules generally apply only to prosecutors, not private litigants). Thus a federal appeals court approved a wrongful-firing award to a Connecticut paper-company executive who’d worn a wire into meetings with his supervisors, although dissenting judge Ellsworth van Graafeiland thought it unfortunate that “every disgruntled employee in the Second Circuit henceforth will feel free to report for work with a tape recorder hidden on his person.” (Judge van Graafeiland also said he thought it unlikely that his fellow judges would be so understanding were their clerks to begin surreptitiously bringing in recorders to monitor their deliberations.)

Good Standing?

[Originally appeared in City Journal, Autumn 1993]

One of the less edifying reactions to the Ruth Bader Ginsburg nomination came when a New York Post columnist lambasted the Brooklyn-born judge for having spent a good bit of effort trying to straighten out the tangled law of "standing" -- the law on who, if anyone, can sue when the government or someone else misbehaves. A nominee with a truly Big Heart, writer Sidney Zion seemed to think, would not have wasted her time on such a purely technical area. Which calls to mind the definition of a loophole as a feature of the tax code 1) whose function is not apparent at first glance, and 2) which benefits someone else. At law, it's usually the technical concepts like standing that make all the difference.

Take the issue of who can sue to challenge allegedly improper state fiscal practices. On May 11, 1993, New York's highest court casually broadened citizens' standing to file such suits -- and sent state financiers scrambling in panic. The result could be a long-overdue reform of state budgeting. But in this case, as in so many, one should not hope for too much public benefit from even well-intentioned lawsuits.

New York's borrowing methods have long insulted the spirit (at least) of the state's constitution, which prohibits Albany from borrowing money without voter approval. The state does that all the time, by channeling debt through its sprawling network of public authorities. The excuse is that since the state is not formally obligated to pay interest on the bonds of its authorities, they don't count as actual borrowing which voters would have to approve.

The theory is bad enough, but the practice is worse. Backdoor borrowing now accounts for no less than $17 billion of state debt, compared with $5 billion obtained through the front door. And since investors demand higher yields on unguaranteed authority bonds than on direct state bonds (to compensate for the lack of formal obligation) officials wind up paying many millions of taxpayer dollars in added interest for the privilege of evading voter scrutiny.

State officials more or less openly admit that they resort to authority bonding to get money for purposes voters would probably turn down if put on the ballot. In one famous deal, the Urban Development Corporation raised $230 million in bonds without voter approval, which it slipped into the state's hands by buying Attica prison and leasing it back to the state. "The Thruway Authority is doing canals," points out analyst Michael Brooks of Sanford C. Bernstein & Co. "These things have lives of their own."

Officials argue that such practices are lawful under existing precedent. In the 1970s, a Brooklyn Law School professor named Leon Wein filed and lost a number of suits challenging backdoor financing. The Wein cases are still good law, say the agencies. On top of that, until May, New York courts had maintained a restrictive attitude toward standing in cases of this sort -- meaning that it was hard for anyone to get into court to challenge the state in the first place.

None of which discouraged taxpayer activist Robert L. Schulz. Filing on his own behalf without a lawyer, the 53-year-old semiretired engineer has launched more than twenty challenges to the state's bonding practices. At first, like many of his pro se brethren, Schulz seemed a mere nuisance. Indeed, in 1992 a lawyer representing the state Democratic party and Governor Cuomo's campaign committee sought a permanent injunction barring the Glens Falls resident from filing any more of his putatively frivolous lawsuits.

But the do-it-yourself litigant -- who gained experience as he lost early cases -- was beginning to score some victories. Among them was a challenge to the state's practice of spending tax money to publish brochures touting the merits of bond issues pending before the voters. And last year he secured a ruling, overturned on appeal, that $531 million in deficit notes were unconstitutional.

Schulz is not planning to join the Establishment any time soon. One of his suits demanded that Tax Commissioner James Wetzler be mulcted to the tune of $1,000 "from his personal account" for having led a dubious foray into New Jersey to catch sales-tax evaders. And along with "prospective" relief restraining the state from issuing new bonds without voter approval, Schulz has also asked courts to unravel done deals, which would force the recall of already-sold bonds. By frightening investors, tactics of this sort have already backfired against the interests of taxpayers. Schulz's temporary victory last year on the deficit notes is said to have nicked the state's reputation badly in credit markets, forcing interest payments higher. "As investors demand higher yields, the state and taxpayers lose millions of dollars," former Comptroller Regan told The Bond Buyer.

Which is why even many who sympathize with Schulz's aims stop short of endorsing his banzai litigation campaign. Regan, who calls New York's borrowing practices the worst in the country, has said Schulz "should get moral support from anyone who cares about debt reform," but "one of these days, he's going to win one...and that would be a disaster for this state."

This May, with his standing victory, Schulz came a giant step closer. The Court of Appeals threw out the two claims under consideration as having been made too late, but declared that Schulz (and anyone else) would enjoy liberal standing to pursue such claims in the future. Only weeks later an Albany judge handed down a temporary order in a Schulz case, restraining the Metropolitan Transit Authority and Thruway Authority from proceeding with a multibillion-dollar financing plan. The move was more symbolic than anything else, since the two agencies weren't planning to issue bonds right away, but the symbolism was noticed.

The case for liberal standing is clear enough: without it, a good deal of misconduct in government would be unreachable by judicial review and would have to be corrected by other means, if at all. "When the courts make it impossible for people to challenge the behavior of government, you have despotism in the extreme," as Schulz puts it.

The problems with liberal standing are less obvious but just as real. It places the power to litigate issues of general interest -- which often amounts to the power to set the public agenda -- in the hands of whoever is most dissatisfied with current policy, even if that person's views are shared by few others. "We lawyers know well," wrote one of the great ones, Frederick Pollock, "and may find high authority for it if required, that life would be intolerable if every man insisted on his legal rights to the full." Skillful politicians can hammer out, say, a redistricting plan that satisfies nearly all participants; but it winds up in court anyway, and whoever stayed out of the original compromise gets the visibility and leverage of being the plaintiff with citizen standing.

There is a wider paradox: if the vast body of voters or taxpayers are imperfectly represented by the state's elected governor and legislature -- as they inevitably are -- how much more imperfectly will they be represented by Schulz, who, for all his evident zeal and sincerity, has never had to face the voters? Is there some way to preserve the corrective promise of taxpayer suits while making sure they serve actual taxpayer interests? Perhaps Justice Ginsburg can return to her home state one of these days and offer some advice.

August 24, 2006

Disabling America

[Originally appeared in National Review, May 5, 1997]

You may think I'm making this up unless I offer a verbatim quote, so here's exactly what the Washington Post reported in a front-page story on April 8: "In January, a former truck driver for Ryder Systems, Inc., won a $ 5.5-million jury verdict after claiming, under the ADA [Americans with Disabilities Act], that Ryder unfairly removed him from his position after he suffered an epileptic seizure, saying his health condition could be a safety hazard. During the time he was blocked from his job at Ryder, the driver was hired by another firm, had a seizure behind the wheel and crashed into a tree. Ryder is appealing the verdict."

That's one of many emerging cases where the right to sue employers under new civil-rights laws "may be on a collision course" with public safety, according to Post reporter Kirstin Downey Grimsley. For instance, the Clinton Administration's Equal Employment Opportunity Commission has filed an ADA suit against United Parcel Service over its policy of employing only drivers with sight in both eyes. The Department of Transportation forbids one-eyed drivers from operating big rigs; UPS applies the same policy to drivers of its delivery trucks. The EEOC says such a rule is unlawful and is demanding that the company fork over back pay.

Years of litigation by advocacy groups and freelance employment lawyers have put customers, co-workers, and the general public alike at risk: -- Physically incapable, mentally unstable, and alcoholic or addicted employees have again and again used new laws to hold onto safety-sensitive positions. The Massachusetts Supreme Court ruled that a Boston police recruit had the right to lie on his job application to conceal a record of repeated hospitalizations as a psychiatric in-patient. Ship's officers have won suits against oil companies for the right to command vessels despite serious boozing pasts; Northwest Airlines rehired a pilot who had flown passengers while drunk.

-- Contagious disease carries protected status too. UCLA hospital officials knew a heart surgeon was infected with the serious and highly transmissible hepatitis-B virus; he went on to spread the virus to 18 patients. "The hospital's decision to allow the surgeon to keep on operating even after he was found to be infected," it was explained, was "in compliance with federal regulations." Prominent disabled-rights advocate and former Ted Kennedy staffer Laurence Gostin has declared that, "seen through the lens of the ADA, public-health regulation may be regarded as discrimination against people with disabilities."

-- Workers' inability to read safety warnings or comprehend verbal instructions has led to accidents on the job, yet employers are under legal pressure not to turn away workers on the grounds that their proficiency in English is poor. One manual warns employers that if they want to stay on the law's safe side they shouldn't demand more English proficiency than they're prepared to prove is necessary to fill a particular position: "Sometimes only a very rudimentary vocabulary -- 'stop,' 'don't,' 'look out,' etc. -- is all that is needed to perform a job."

The reaction in progressive circles? "Advocates for the disabled," reports Kirstin Downey Grimsley, say that "even if there is an increased risk, society must accept it as the price of creating a fairer workplace for the disabled." "We can't live in a risk-free world," said Chai Feldblum, a law professor and American Civil Liberties Union activist who helped draft the ADA. Pretty ironic, since in other contexts it's thought suitable to demand punitive damages from a business that tolerated even the slightest elevation of an injury risk -- by serving coffee at any temperature above tepid, for instance.

Invariably, backers of the new laws cite language that seems to let employers take safety concerns into account. But in practice, employers act on such exceptions only at dire legal risk.

Thus the ADA allows employers to refuse a job to persons who would "pose a direct threat to the health or safety of other individuals in the workplace." In a famous case, GTE tried to fire a computer team leader who had stolen thousands of dollars from his colleagues' desks and purses and had brought a loaded gun to the Tampa office. He sued, claiming his actions had arisen from a "chemical imbalance" that GTE was obliged to accommodate. Federal judge Elizabeth Kovachevich allowed his suit to proceed.

Feminist litigators have applied similar paralysis-by-analysis tactics in order to eviscerate strength tests for prospective firefighters, police, and other public-safety officers. Strength testing is rife with "disparate impact" because inherent physiological differences between the sexes are so profound: in Chicago's 1985 fire exam, the highest-ranking woman placed 1,200th among 7,500 applicants. Upper-body strength, important for such tasks as lifting hoses and smashing down doors, shows an especially wide gap: the fittest one-fifth of women roughly match the strength of the least fit one-fifth of men.

Seldom is it declared openly that the goal is to end testing; the problem is said to be that the particular test in question is insufficiently "validated." That's how advocates can get courts to second-guess tests to death, as in Brunet v. Columbus (1986). The city of Columbus had put would-be firefighters through a series of tests simulating typical fire-scene tasks, most dramatically a rescue in which applicants were asked to carry a 125-pound sandbag along a twisting course. When the case reached court, federal judge Joseph Kinneary accepted the plaintiffs' contention that it was unfair for the city to count off points against recruits who chose to drag the sandbag instead of carrying it. After all, the lawyers pointed out, in smoky rooms firefighters sometimes find it safer to drag bodies to safety. The implication was that the city should be indifferent between recruits who could use only one of the two rescue techniques and those who could use both -- leaving Columbus residents to hope, next time they needed help, that the hazard in their particular room was smoke rather than glass or burning fluid on the floor. (At least they're better off than residents of San Francisco, which formerly asked recruits to carry a 150-pound sack up a flight of stairs, but now lets them drag a 40-pounder across a smooth floor.)

Judge Kinneary also disallowed the city's practice of awarding credit for speed in accomplishing the dummy rescue or other simulated tasks such as hoisting equipment to upper floors (men tended to finish the tasks more quickly than women). Why? Well, Kinneary wrote, again accepting the arguments of plaintiffs' lawyers, testimony had been given that "sometimes firefighters work all-out, and sometimes they pace themselves; it depends on the task at hand." In other words, they hurry only sometimes, and other times save their energy because they expect to need it later. From this the judge concluded that all applicants who made it through the tasks at all deserved equal ranking. The case for preferring recruits who could work quickly was merely, he said, "anecdotal." Yes, you read that right. It seems people have picked up this anecdotal idea that firefighters should do their job fast, maybe because they've heard anecdotally that fires left undoused tend to spread. Many press accounts adopted the same high-minded agnosticism about exactly what it takes to fight fires. City officials defending tests say "speed is critical" in combating blazes, reported the New York Times, in the best tradition of we-print-all-viewpoints journalism. "Opponents argue that it is not."

Police have fared no better. Subduing suspects by force is part of a police officer's job, but the Ninth Circuit declared it improper for Los Angeles to test police recruits for agility. In 1986 the New York Police Department agreed to drop its pre-employment physical for recruits, under threat of lawsuits. Within a few years, more than one in five city cops were considered out of shape; some hires, according to an expose in New York, fell in "the almost inconceivably unfit first percentile" -- that is to say, "worse than 99 per cent of others their age and gender."

Age-discrimination law, which now forbids automatic retirement at 65 in most lines of work, adds another risk dimension. When former Sen. Howard Metzenbaum (D., Ohio) blocked efforts in Congress to retain a retirement exemption for public-safety workers, Frederick Nesbitt, who heads the 200,000-member International Association of Fire Fighters, warned that elderly fire and rescue workers would more often be incapacitated at critical moments: extending age-bias law into this area, he said, would "result in the injury or death of innocent people."

The crusade against strength tests is immensely popular in the law schools, where it's seen as a shining example of what feminist law can do. And yet despite two decades of activism, the actual number of women firefighters remains low, an estimated 2 per cent nationally. Many wash out of training when they learn the physical demands of the job, or go on disability later. But what may be most corrosive about the courts' hostility to strength tests is that it keeps services from upholding standards among men: if they can drag the 40-pound dummy, they're in. Call it a pro-child policy, since only tots are guaranteed a capable rescuer.

Now the ADA is making things much worse. Nesbitt suggested in congressional testimony that the combination of the ADA and new bans on test "norming" is likely to make designing meaningful fitness tests "extraordinarily difficult and perhaps impossible." He added, "To date, EEOC has been unable to identify valid tests that will meet these criteria."

Not all women are happy about the assumptions made by the courts and the lawyers who presume to speak for women. "You have to ask yourself, if it was your child or your mother, who do you want to go and get her down the ladder?" asked Lauren Howard, for years the only woman on the Chicago fire department. "Do you want somebody big, incredibly strong, extremely fast, or someone who is average?"

Let's hope the life of someone we love never depends on the answer to that question.

Review of Marcia Angell, Science on Trial

[Originally appeared in National Review, Nov. 11, 1996].

In recent years leading medical researchers have come out with big studies finding -- contrary to what we were told in one of the great scare campaigns of modern times -- no link between silicone-gel breast implants and the rate at which women contract diseases such as scleroderma, rheumatoid arthritis, and lupus. As PBS's Frontline summed up the data, "Women with implants do not have measurably different health from women without implants." Millions of women were badly scared, it seems, for nothing. As Gilda Radner used to say, "Never mind."

In a rational world this news would have been followed first by a huge sigh of relief, then by a round of apologies, and soon thereafter by some quiet retirements from public life. First to apologize would be the trial lawyers who stoked the panic at every stage, recruited tens of thousands of anxious women (1-800-RUPTURE was one hotline), filed lawsuits on their behalf that often shared the same typos, bankrupted formerly healthy Dow Corning, and pocketed millions in contingency fees from the resulting jury awards.

Next in line to offer regrets would be various figures manipulated wittingly or not by the lawyers. Connie Chung, who touched off the big panic in a 1990 CBS news show, would send a producer to accept a Golden Oops statuette. Food and Drug chief Dr. David Kessler would quit after squirming before a congressional committee probing his decision to order the devices banned. Public Citizen, the Ralph Nader operation that sedulously spread the scare, would shamefacedly halt its sale of implant-litigation kits to trial lawyers and disband its clearinghouse for implant law firms; and its spokesman, Dr. Sidney Wolfe, would find his card tossed from many a press Rolodex.

Of course this is America in the 1990s, so none of this happened. The lawyers and Public Citizen simply denied everything; Dr. Kessler dodged; Miss Chung's producers had long since moved on to other projects. Studies or no studies, some juries -- enough to keep the game highly profitable -- go right on awarding damages; one in Nevada awarded $ 14 million.

As executive editor of the nation's leading medical journal, the New England Journal of Medicine, Dr. Marcia Angell published the pioneering Mayo Clinic study finding no link to disease. "Almost immediately," she relates, "I received phone calls from reporters who had spoken with plaintiffs' attorneys eager to discredit the Mayo Clinic, the New England Journal of Medicine, and me personally." Soon the lawyers were aiming punishing subpoenas at her and at Mayo's Dr. Sherine Gabriel.

Bad move. Provoked, Dr. Angell has now written a damning book about the whole implant scandal, on top of the damning journalistic exposes that have been running lately in places like the New York Times, Fortune, Discover, Reason, and the editorial (but not news) side of the Wall Street Journal.

Dr. Angell writes with quiet authority on the medical issues, detailing the lawyers' retreat "bunker by bunker" to claims quite different from those they made at first. She notes that while studies based on health records before the panic indicate zero effect, those drawn from later records are inevitably skewed by the panic itself toward finding the publicized (self-reported) symptoms; lawyers have seized on this effect hoping to keep the debate open. Dr. Angell also disposes of the claim, much bruited about in letters to the editor, that the researchers forgot to check for new patterns of "atypical" auto-immune or connective-tissue illness.

Though Dr. Angell strives for a sober and analytic tone, human drama keeps nosing in. A Texas woman doesn't believe herself ill but says "my family will kill me" if she doesn't file a claim. Dr. Angell blasts "blatantly unethical" members of her own profession who assist the lawyers by running diagnosis mills. One Texas doctor makes $ 2 million a year certifying illness in implant recipients, more than 90 per cent of whom come in as lawyer referrals. A diagnosis in hand "is of great value to your claim," his brochure explains; "the manufacturers (and frankly, jurors) value a woman's case much lower" without one. Other doctors proceed to "unnecessary, costly, and sometimes risky treatments" such as dosing patients with steroids; one woman was put through $ 90,000 of hospitalization and $ 10,000 a month in therapy.

Before the studies came out several manufacturers had agreed to settle for a numbing $ 4 billion, including $ 1 billion in fees for the lawyers. The terms were generous: for example, as Dr. Angell notes, "a woman could claim joint and muscle aches, disturbed sleep, fatigue, and burning pain in the chest, none of which can be objectively verified by her doctor or anyone else, and collect up to $ 700,000." Lawyers surprised even themselves by recruiting hundreds of thousands of women claiming compensable illnesses, and the $ 4-billion deal collapsed as too _low_.

New to the subject of lawsuit reform though she may be, Dr. Angell offers generally excellent proposals, emphasizing rules that would exclude unreliable expert testimony -- "junk science" -- from court proceedings. (Trial lawyers have fought such rules, with help from Harvard's Laurence Tribe and some other academics.) Though silent on loser-pays, she puts her finger on our sore lack of ways to bring lawyers' incentives into line with society's. Other businesses tempted to violate ethical rules, she notes, risk losing customers and getting into trouble with the law. "Plaintiffs' attorneys are not similarly restrained. Their clients gain right along with them, and they are not only acting within the law, but using it as an instrument." Perhaps contingency fees "should be forbidden in this country, as they are elsewhere."

In an arresting passage, Dr. Angell writes of how she views herself as a feminist and "liberal Democrat . . . quick to see the iniquities of large corporations. I disclose my political philosophy here, because it did not serve me well in examining the breast-implant controversy. The facts were simply not as I expected they would be." But "my most fundamental belief is that one should follow the evidence wherever it leads." Whether silicone causes disease "is not ultimately a matter of opinion or legal argument; it is a matter of biological fact."

Capitol Hill bully John Dingell finally ran aground when he began casually defaming the respected liberal scientist David Baltimore. Let's hope this book marks a similar turning point.

May 2, 2006

A Connecticut Yankee In Court

[Originally appeared in City Journal, Autumn 1996]

Just as the disputed borderland of Alsace-Lorraine abounds with flag-waving Gallic patriots, so we in Connecticut tend to insist, a bit too loudly, that we, too, are New Englanders. Sure, we're only an hour or two from Times Square, but we can find brown eggs and Yankee at the Stop & Shop, and Essex might just as well be on Cape Cod. We even have town meeting. Actually, there is something to this last point. Towns here do preserve their individual character, in large part because we lack anything like county government. Tedious and chaotic though it often is, town meeting symbolizes the way neighbors cooperate hereabouts. It's a kind of face-to- face citizenship, concerned with every topic of local interest but, above all, with management of the schools.

These days will soon draw to a close if the Connecticut Supreme Court makes good on its widely hailed July 9 decision in Sheff v. O'Neill. In what three dissenting justices called "a vast and unprecedented social experiment," the court blithely struck down Connecticut's deeply rooted system of town-based school districts and turned the state toward a policy so utterly discredited since the 1970s that most of us never expected to hear of it again: mandatory city-suburb busing to achieve racial integration.

For years the lawyers behind the litigation trotted out lead plaintiff Milo Sheff, a black teen from Hartford, in order to give the suit an appealing public face. Yet there was nothing spontaneous, local, or personal about Sheff v. O'Neill. It arose from years of planning by national groups like the American Civil Liberties Union and the NAACP Legal Defense Fund, and no one thought it strange when the lawyers held their first post-victory strategy session in New York City. The idea was to get around the U.S. Supreme Court's 1974 ruling in Milliken v. Bradley, which made clear that the federal Constitution does not require city-suburb busing. The new tactic was to subject various broadly worded provisions of the Connecticut Constitution to what former ACLU legal director John Powell called some "stretching."

The plaintiffs won a 4-3 squeaker. Three Lowell Weicker appointees joined with departing chief justice and former Yale law professor Ellen Peters to propound a wholly new constitutional right of children to enjoy "access to public school education that is not substantially impaired by racial and ethnic isolation." Rather than ordering some specific "remedy," as courts normally do, the majority simply directed the legislature and the governor to take care of the problem at once--"to put the search for appropriate remedial measures at the top of their respective agendas"--without saying what would satisfy this command. This vagueness also reflected a deliberate strategy of the plaintiffs: during seven years in court, as the Hartford Courant reported, they had "never suggested any specific ways to correct the imbalance." Better to get into the driver's seat first and then decide in later rounds of litigation where they want to go.

Three dissenting judges, led by Justice David Borden, charged that the decision was "ungrounded in the text and history" of the state Constitution. They were less coy about its implications: "every school district in the state that is primarily white and that does not have an appropriate percentage of African-American and Hispanic students" was in violation of the court's ruling and would have to alter its boundaries or its racial and ethnic makeup to remedy this "unconstitutionality." The necessary practical result: "a statewide system of transportation based solely on racial, ethnic, and religious factors."

The state's governing elites have agreed to avoid any discussion of this prospect. "Busing is not an issue," said James Fleming, majority leader of the Republican state senate. A confidential memo from the state Democratic leadership, inadvertently left behind in a conference room, warned that election-year talk might easily turn to "forced busing," "loss of local control," and "redistricting." It advised lawmakers to "draw the debate away" from such disturbing possibilities.

Though it is impolitic to discuss busing openly, some opinion leaders see no harm in quietly preparing the public mind for it. The Hartford Courant reported that minority lawmakers "did not rule out some busing to help achieve racial balance." Students already ride buses, the paper's editorialists sagely noted: "Some extra transportation may be necessary, but it doesn't have to be massive and over long distances." One much-discussed option is forcing towns to merge into regional school districts--that way, no one could complain of being compelled to cross district lines.

Once under such a regional scheme, towns would inevitably lose control of school finances, hiring, discipline, and curriculum. Many parents are still only dimly aware that Sheff might mean so much for their children and communities. Like the cartoon character who doesn't know he's run off a cliff until someone directs his attention downward, they pack up the kids each morning for a school that, without their realizing it, has been abolished out from under them.

February 2, 2006

A Country Named Sue

[Originally appeared in CEO International Strategies, October/November 1992]

There are two points of view about civil litigation, one fantastic and one realistic.

The fantastic view, put out by the press offices of the American Bar Association, the Association of Trial Lawyers of America, and the Consumers' Union, is that litigation is a method by which society rights wrongs and metes out justice, and that unless you've done something wrong, you needn't worry about getting sued.

The realistic view is that of Jerome K. Jerome, the turn-of-the-century British humorist (Three Men in a Boat):

"If a man stopped me in the street, and demanded of me my watch," observed Jerome, "I should refuse to give it to him. If he threatened to take it by force, I feel I should, though not a fighting man, do my best to protect it.

"If, on the other hand, he should assert his intention of trying to obtain it by means of an action in any court of law, I should take it out of my pocket and hand it to him, and think I had got off cheaply."

Plenty of American business people these days feel the same way. They know that just about any employee they fire, for good cause or bad, can (if possessed of a sharp lawyer and a dull conscience) use the leverage of a lawsuit threat to demand a whopping severance packet.

They know that if their company's stock price falls (or rises) too sharply, some supposedly disgruntled shareholder whose name may have been stamped on dozens of similar lawsuits against other companies will take them to court and then step aside while the law firm that really controls the action negotiates its million-dollar fee award.

We sometimes speak as if America's lawsuit crisis were mostly a matter of personal injury suits, affecting those few companies so foolish as to go on making two-seater planes or football helmets or medications for expectant mothers even after our legal system's disapproval of such activity has been made clear.

That's part of it, of course. The direct constant-dollar cost of American tort law, in insurance and related expenses, doubled in the ten years to 1987. Compared with the average advanced democracy with which we compete on world markets, we in America manage to spend from three to five times as much on tort law as a share of our GNP. The gap has been getting wider, too, not narrower.

But the litigation problem is not just a matter of the parents who sue because their 7-year-old spilled hot mashed potatoes on his lap, as in a recent case against the Fresno schools for allegedly negligent lunchroom supervision.

It's also the free-for-all (or, differently put, expensive-for-all) strife within the business world itself, the mounting legal sniping and sharkery between suppliers and purchasers, lenders and borrowers, franchisees and franchisors, commercial tenants and building owners -- not to mention the lawsuits everyone files against their competitors.

Some observers believe that commercial litigation is growing faster than tort litigation. Be that as it may, it's a common complaint that the deal that would get done with a handshake in Japan, and a four-page contract in Europe, lumbers to completion in the United States after the hammering out of a hundred-page contract that tries to anticipate every contingency and stave off every hostile judicial interpretation. The expense is astounding, to say nothing of the delay. And then you can get sued anyway.

It wasn't always this way. Until not long ago, our legal system aimed to keep lawsuits an exception, a last resort. Protecting innocent targets from unfounded or speculative accusations was considered just as important as getting to the bottom of well-founded claims. Those who wanted to sue were expected to offer a plausible account at the start of what their opponent had done wrong, and then stand or fall on that account, as a prosecutor must.

"Discovery" powers to compel adversaries to release information were strictly regulated, lest they turn into fishing expeditions. Canons of legal ethics forbade lawyers to stir up suits for their own profit.

If litigation is relatively uncommon, and the stakes have not spiraled to the terrifying bet-your-company level, then the fear of litigation will not have to drive the way deals are done. Hence the short contract, or the handshake.

It was only fairly recently, as historical trends go, that the climate in our legal culture changed. Not until roughly the 1960s or 1970s did our law schools really begin to buy into the idea that the way for a country to get more justice (as well as more safety, ethics and so forth) was for more and more people to sue over more and more things.

Once that change of ideas had taken place, all the rest was a matter of time. Our legal rules, which for so long had sought to constrain and curb the litigious passion, began enthusiastically stoking it.

Reformers vastly liberalized procedure, making it easier for lawyers to shop around for favorable courts in which to file suits, to get the testimony of a dubious hired expert witness admitted to keep a weak case alive, and so forth. Legislators and courts enacted vague laws and standards providing plenty of new grounds to sue, and new chances to collect triple, punitive and intangible damages for such things as emotional distress and humiliation.

Meanwhile we were deregulating lawyering as an industry, and encouraging a bottom-line approach to legal practice. One legal ethicist accurately captured the new mood when he wrote of an "ethical responsibility to chase ambulances". We forgot to ask how well the policy of laissez-faire would work for society when the service being deregulated is that of subpoenaing people as opposed to, say, installing their telephones.

What can we do about it all at this late date? A great deal, actually. And we don't have to design a new legal system from scratch. The key is to learn first from history and secondly from how things are done in other countries.

Discourage Litigation

The most important lesson is one of spirit and approach. "Discourage litigation," wrote Abraham Lincoln, in a view typical of his day. "Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, expenses and waste of time."

It's a lesson business people can take to heart in their own activities. That way they might not boast, as did one Hollywood CEO notorious for hardball lawyering, of having turned litigation into a profit center for their companies.

History holds lessons on a level of society-wide policy as well. We know, for example, that the present pro-litigation rules are not graven in stone, simply because we did without them so recently in our past as a nation. Even the lawyers' contingency fee -- which, for drummers-up of litigation, is like the battery in the Energizer bunny -- did not become legal everywhere in this country until the 1960s. (It is still flatly prohibited by legal-ethics rules in most countries, as giving lawyers too sharp an incentive to stir up suits and to overplay their clients' hand once in court.)

We can also learn from experience abroad. Virtually all the proposals of today's legal reform movement, from the curbing of pre-trial discovery to judicial control of expert testimony, would simply move this country closer to the longstanding legal practice in other industrial democracies.

This is emphatically true of the proposal to introduce a "loser-pays" principle, by requiring litigants whose position is not vindicated to compensate their opponents for at least some of the financial harm done by the litigation.

The principle of shifting legal fees in this way is firmly rooted in Roman as well as Anglo-Saxon law; it is the rule not only in Britain and Canada but also in France, Germany, Switzerland and other countries whose legal systems descend from Roman models.

The "loser-pays" rule has some interesting features that help align litigants' incentives with the wider interests of society. In many countries, for example, a plaintiff who succeeds in proving liability, but then is awarded a much lower sum than he asked for, is considered to have mostly lost his case, because he exaggerated its value and probably frightened the other side into overly costly preparations for trial. And so a sizable fee shift can be deducted from his award -- strong motive to set a reasonable money demand from the start. That is one reason the hundred-thousand-dollar claim for a broken arm is unknown in most countries.

Now, if there is anything that can be said about a legal practice that prevails in nearly every civilized country, that has centuries and indeed millennia of experience behind it, that is considered wholesome and necessary by political leaders abroad ranging from the most progressive to the most conservative, it is that such a practice would not spell the end of the world for Americans who find themselves involved with the courts.

Even so, much of our legal establishment has reacted to the idea with the open-mouthed horror of that fellow on the bridge in the Edvard Munch painting. Even the remote fluke chance of an adverse fee shift, they object, would frighten people with valid cases out of justice. (As if the certainty of not being compensated for money spent in a valid defense does not do exactly that now.) Holding those who sue accountable for the damage they do, we are told, runs counter to the American spirit of suing with impunity. It is -- the ultimate insult -- "radical".

Maybe it is, if one remembers that "radical" means getting to the root of something. If the root of our lawsuit mania is our power to inflict uncompensated costs on each other through legal process, then a loser-pays rule certainly does strike at that root.

Frightening lawyers

One may pass over briefly the irony of seeing a legal establishment that usually resembles an overly trendy clergyman in its undignified eagerness to change and grow with the times, suddenly become the soul of caution and conservatism when the question is one of constraining rather than expanding litigators' powers.

The point to make is that the harder our bar associations and law schools dig in their heels against even modest reform, the surer the prospect that before long they will be confronted with demands for change that truly will be radical.

The public, after all, is well on its way to figuring out that something has gone terribly wrong in our legal system. And once grass-roots activists get mobilized they do not tend to fool around with halfway measures. When they noticed that Congress was getting arrogant, for instance, grass-rootsers did not bother trying to refine the already incomprehensible laws on campaign finance or the budget process. They went for a swing of the well-aimed two-by-four, in the form of term limits.

It's remarkable how often talk-show callers and audience questioners around the country advance a similar proposal. Isn't reform impossible, they ask, so long as our legislatures are dominated by members who are lawyers? And isn't the answer, then, to prohibit lawyers from sitting in legislative bodies?

Any sober policy analyst could offer a number of plausible reasons why such a ban might be a bad idea: lawyers are among the most skillful drafters of legislation; not all lawyers vote in favor of bills that expand opportunities to sue; many lawyers in fact are eloquent critics of today's excesses. But one can't deny the insight behind the question, a radical insight if you will: there's a deep conflict of interest between the two jobs, and what are we going to do about it?

Activists in various states are beginning to prepare initiatives that, if nothing else, should help get the legal establishment's attention. Rob Spooner of Oregonians to Limit Lawyers in the town of Florence has launched a ballot drive aimed at shutting down the state university's law school. His reasoning is that since there are already too many lawyers practicing in the state, why turn out more? He points out that Alaska has gotten along just fine without an in-state law school, as did other states in the relatively recent past.

Come to think of it, Mr. Spooner may be on to something. If America stopped its production of lawyers tomorrow, it might peg along for decades before the number practicing per capita fell to the levels of other leading countries. (The U.S. has 281 lawyers per 100,000 residents; Germany 111; Britain 82; and Japan 11. The A.B.A. has responded with some heat that these numbers are terribly misleading because in Japan non-lawyers prepare tax returns, seemingly unaware that they do so here, too.)

Interestingly, Dean Mark Yudof of the University of Texas Law School, a scholar of repute as well as an administrator, has proposed slashing the number of students admitted to that state's law schools. (Lone Star lawyers now number 50,000, up 55 percent since 1980.) Even the A.B.A., at its last convention, was forced to consider a resolution submitted by Omaha lawyer David Begley calling on law schools to cut their intake by a third. It was voted down, but the sheer presumption of Begley's getting such a measure to the floor is news in itself.

Here's my free advice to the litigation industry: start paying at least lip service to legal reform, instead of rejecting it as haughtily as you've been doing. If the public decides you're never going to clean your own house, it might step in and do the cleaning itself. And then it might do something...radical.

Why Business Loses In Court

[originally appeared in Fortune, May 23, 1988]

Evita Peron, if one believes the stories, used to carry out a rousingly popular form of case-by-case wealth redistribution. On her radio program she would field pathetic calls from destitute widows and Buenos Aires slum dwellers. Then she would call merchants more or less at random and order them to send a refrigerator or stove to the needy household. The voters loved it.

Richard Neely is in a similar line of work. He is a modern judge. "As a state court judge," he reports, "much of my time is devoted to designing elaborate new ways to make business pay for everyone else's bad luck." He is happy to sustain an award of several hundred thousand dollars against the Michelin company even though the one-car crash in question was of "unexplainable" origin. After all, "Michelin will somehow survive (and if they don't, only the French will care), but my disabled constituent won't make it the rest of her life without Michelin's money."

The unsettling thing here is that for all his willingness to plunder a possibly innocent defendant, Neely is no cardboard demagogue. Far from it: He is thoughtful and well informed, in no way hostile to business, and keenly aware that "my microproblem as a judge who wants to sleep at night has begun to create a macroproblem for the entire economy." He explores this clash between his private incentives as a judge and society's well-being in The Product Liability Mess: How Business Can Be Rescued From the Politics of State Courts (Free Press, $24.95). The prolific judge (author of How Courts Govern America and Judicial Jeopardy) is in his best writing form. He lays out his dilemma with clarity and wit, not to mention a candor that begins on page one and never lets up.

Lawsuits alleging injury by products, Neely explains, typically pit a hometown consumer against an out-of-state manufacturer and insurer. The one who benefits from an award is a neighbor, right there in the courtroom; the potential losers are anonymous workers, investors, and managers from all the far corners of the earth, hidden behind the insensate mask of the Michelin Man or some other corporate symbol. Neely says state judges would have trouble getting reelected or reappointed if they tried to be entirely impartial between the home team and the visitors. Instead they develop a sense that it's their duty to help out their local "constituents."

This strong incentive to bestow mammoth awards is not offset by any disincentive. Dishing out home cooking to an auto accident victim in West Virginia courts will not necessarily raise prices at Wheeling tire stores. Reason: If manufacturers charge a higher price in one state to cover that state's known propensity for lawless verdicts, middlemen will simply bring lower-priced stocks in from neighboring states. So the most pro-plaintiff states will get a free ride as big liability verdicts are in effect paid by consumers nationwide. Imagine Evita's success if she could have helped her followers in Argentina by zapping merchants in Uruguay and Brazil. Of course, other states eventually catch on and try to get ahead of the pack with their own increasingly pro-plaintiff laws and pro-plaintiff rulings -- what Neely calls "the race to the bottom."

Even if a state does adopt a self-denying rule refusing liability, its citizens can take advantage of the more generous laws in other states through so-called forum shopping. Suppose just one state -- say New Jersey -- accepts the theory that tobacco companies are liable for tobacco-caused damage to their customers' health. Then tobacco companies can expect to face suits not only from current residents of New Jersey but also from those who work there while living elsewhere, and those who used to live or work there. Add to that people in distant states who perhaps smoked cigarettes made there and many others who can claim some arguable "nexus" with the Garden State -- maybe conductors who smoked regularly on Northeast corridor trains, or Delaware radio fans who heard Winston jingles played on Jersey stations back when. Some smokers will even move into the state in order to sue. The propensity of plaintiffs to head for happier hunting grounds -- what writer Peter Huber has called the have-lawsuit, will-travel syndrome -- is another reason the most pro-plaintiff states tend to set the pace for the whole nation, while pro-defendant states can find their laws a dead letter.

BUT ISN'T TORT REFORM -- the rewriting of often old laws concerning injury and damage -- supposed to be making the law more reasonable? Maybe, but there's a small problem. The folks who get to implement tort reform are the same ones it is meant to constrain: the judges on state courts. As skilled lawyers, they know a hundred ways over, under, and around mere parchment barriers. Have lawmakers limited awards for such noneconomic harm as emotional distress? Make way for creative new claims of economic injury. Does the law exclude liability for obvious hazards? The meaning of that term is, well, less than obvious. And jurists can always throw out tort reforms as contrary to their state constitutions, a tactic by which they disposed of many of the medical malpractice reforms of the 1970s.

The only ones who can stop the race to the bottom, in Neely's view, are the federal courts, which do not answer to an electorate. He believes the federal courts should simply seize control of product liability law. This display of jurisdiction-grabbing might be as audacious as anything the states themselves have done, but Neely does not shrink from the charge of judicial activism.

WOULDN'T A FEDERAL role in tort law mean sending every barroom brawl and fender-bender to an expensive and often distant U.S. courthouse? Not to worry, Neely says. Federal judges wouldn't handle most cases themselves; they would just review what state courts have done, now and then proclaiming a broad new principle or correcting an outrage of the Pennzoil variety, much as they oversee the workings of state criminal law under the Warren Court decisions of the 1960s (an analogy in which many conservatives will not take comfort). Any number of issues could serve as entering wedges for the federal supervision Neely seeks, including a case this term in which the Supreme Court is expected to decide whether a state's punitive damage awards can ever be so outrageous as to be unconstitutional.

Although Neely eschews high theory in favor of his own brand of pragmatism, many academics share his interest in correcting the system's externalities -- the misplaced incentives that encourage states to try to live at one another's expense. But few seem prepared to go as far as he toward wholesale federalization. Some are looking for the least restrictive ways of restoring proper incentives to states. Edmund Kitch of the University of Virginia suggests a general law permitting manufacturers to opt out of notorious liability states: By stamping "not for sale or use in Texas" on their products, they could escape that state's law. Michael McConnell of the University of Chicago wants to reduce the scope of forum shopping by returning to so-called choice-of-law rules, such as "the law of the place of sale governs." They have generally been part of common law and have been worn away by court rulings.

It is worth paying attention when a leading state court jurist asserts that he and his colleagues are really not up to the task of exercising the vast redistributive powers they possess. After this stop-me-before-I-rule cry for help, not many readers will remain confident that the current system can deliver the right legal answers on product liability.

One might wish, however, that the author did not share quite so many of the assumptions of the system whose workings he explains. For all that he (like most people) is troubled by the obvious excesses of the liability revolution, his critique is narrow: Just call off the states' race to the bottom, and the runners will take care of themselves. Sharing as he does the widespread view that judges are no more than politicians in robes, he merely wishes to widen, from the state to the nation, the circle of constituents whose interests they consult in making decisions. That is not really the same thing as doing impartial justice.

January 13, 2006

Theory-Addled Lawyers

[Review of The Lost Lawyer: Failing Ideals of the Legal Profession by Anthony Kronman. Originally appeared in Across the Board, February 1994]

Writing in the Wall Street Journal last year, Harvard Law School professor Mary Ann Glendon observed that Lani Guinier’s failed nomination for U.S. assistant attorney general for civil rights should bring pause to an legal academic establishment that is "woefully out of touch with American culture and political life". Guinier's dense articles on voting rights law, which were to prove unacceptably extreme to even the most liberal Democratic senators, had passed almost without challenge in the "hothouse environment" of the law reviews, whose "relatively homogeneous political culture", Glendon wrote, displays "a growing disdain for the practical aspects of law, a zany passion for novelty, a confusion of advocacy with scholarship, and a mistrust of majoritarian institutions".

Though about a hundred times less outspoken than Glendon, Professor Anthony Kronman of Yale Law School shares much of her dismay at legal academia’s current “contempt for the claims of practical wisdom”, its valuing of brilliance over deliberativeness. Kronman’s The Lost Lawyer (Belknap/Harvard) takes on the issue in a somewhat tedious but undeniably thought-provoking manner.

Guinier is hardly an extreme example of the crisis about which Kronman writes: Compared with much current legal academic writing, actually, hers comes off looking rather mild. A Syracuse University Law School professor recently got a sober hearing for her proposal that companies sued by "less-empowered" individuals on tort claims should not only be required to prove affirmatively that they are innocent, but should have to fork over claimed damages at the start of the controversy and then sue to get their money back, a result the good professor derived from, no kidding, feminist theory. ("It's just so far from the way the legal system currently operates that I -- I just don't have a reaction to it," an evidently stunned practicing lawyer told a Journal reporter when asked to respond to this and similar theories.)

Should anyone care if the academic study of law goes the theory-addled way of so many humanities departments? Well, yes. When fields like art history or French literature succumb to intellectual faddism, the damage is limited: people by the million go on enjoying Rembrandt’s paintings and speaking French anyway. Legal theory gone wrong can land you in jail, take away your land, or drag you into a custody battle.

It can also, as Kronman observes, starve the minds of those who practice law for a living -- those who would like a professional ideal to live by, but no longer get useful guidance from the elite. Legal academia has grown dismissive of the profession's older ideals without offering a credible alternative in their place, he says.

What were those older ideals? The good lawyer, it was long thought, displayed what Kronman calls "practical wisdom", conceived of as a trait of character as much as an operational skill. It consisted of being "more calm or cautious than other people and better able to sympathize with a wide range of conflicting points of view", familiar with human nature through the "broad acquaintance with suffering and ambition on which sound judgment generally depends". Such qualities helped make lawyers natural leaders in politics and other settings; the "lawyer-statesman" could, in a sense, treat the nation as his client.

Part of the package was a distrust of abstract speculation and grand theory. Flannery O'Connor, asked for her literary theory, said she wrote the way Samuel Johnson's blind housekeeper poured the tea: she put her finger in the cup. So it was with the common lawyer, who was famous for proceeding case by case, proving no more than was needed to resolve the immediate controversy and hoping for solutions that were workable if not necessarily precise or consistent.

Kronman, generally critical of trends favoring academic legal thought over experience, is particularly severe on the displacement of law by "law and…". Learn a little economics (or sociology, or gender theory, or semiotics), it seems, and you can soon reduce the law of real property or criminal sentencing to a three-factor model, or a template of sexual oppression, or a word game. And since you are reinventing the world from scratch, "the vast storehouse of accumulated precedent, to the extent that it conflicts with the requirements of natural reason, is nonsense to be discarded with impunity" -- consigned to those melancholy shelves in the back of the law-library stacks marked "SUPERSEDED".

Speaking of oversimplication, however, one should note that there's a huge difference between law-and-economics (or law-and-other-things) done badly -- the kind being roasted here -- and done well. In the wrong hands, economics can indeed be a bluntly reductionist instrument, a way of abstracting away almost all the life in a legal situation. At other times it can be powerful in itself and obviously relevant to practicing lawyers: One thinks of, for example, George Priest and Benjamin Klein's finding that cases that go to trial (as opposed to settling out of court) are not a random selection of the cases that get filed but instead differ from the norm in systematic ways.

Nor, for that matter, are economists as a class deaf to the lawyerly virtues of case-by-case reasoning, historical narrative or persuasive rhetoric, as witness Austrian economist Friedrich Hayek's classic defense of the common-law method or the more recent writings of D. McCloskey, a University of Iowa economics professor.

More broadly, one wouldn't want practical wisdom to become a prerequisite for academic life. A university does well to shelter some thinkers whose heads are in the clouds; its inhabitants should not resemble the villagers in the 1912 E.F. Benson novel Mrs. Ames who had never seen an abstract idea wild, any more than they had seen a wild elephant, but only tamed and eating sweets, as at the zoo. Still, one can join Kronman in hoping that what he sees as the distinctive expertise of the practicing lawyer -- the "art of handling cases", seeing analogies and distinctions between them, imagining how future cases could arise -- will again begin to get a little respect in the legal academy, and not be dismissed, as it now often is, as unrigorous and anecdotal.

A curious aspect of this book is the clash between its substance and its predominant style. Kronman proclaims the need for particularity and concreteness, but he does so for most of the book's length in the dryest of academic manners, with a dire shortage of examples, cases and metaphors, not to mention humor. Happily, the Muse pops by for the last chapter, where Kronman rises to eloquence in a number of passages. That last section is the place to begin for all but the specialist reader interested in pursuing the thesis of this difficult book.

January 2, 2006

Breaking Ranks

[Review of Reflections of an Affirmative Action Baby by Stephen Carter. Originally appeared in National Review, Oct. 7, 1991].

* * *

"I got into law school because I am black." Stephen Carter isn't just grabbing our attention by opening his first chapter that way; he wants to cut through the pretense. He doesn't see any point in denying that elite American universities and employers admit on a racial curve. He's not impressed by activists who want "simultaneously to insist that racial preferences be preserved and to force the world to pretend that no one benefits from them."

Carter's experience won't let him pretend. He recalls how Harvard first turned down his application because, as one official candidly put it, "we assumed from your record that you were white," then switched to frantic wooing when it discovered "additional information that should have been counted in your favor"--namely, "the color of my skin."

Instead he went to Yale; having graduated from the law school, he became a professor there, and got tenure at a precocious age. Star minority candidates, it seems, are the targets not only of cultlike love-bombing from recruiters but also of bidding wars that can bring them bigger pay packets than similar white scholars may expect. At least at places like Yale, "race continues to add value in the hiring process. The value is often reflected, as values in a market generally are, by a price tag."

That's the upside, or part of it, for the intended beneficiary. Part of the downside is that certain things are expected of your writing and thinking. Carter gets letters addressed "Dear Minority Colleague" presuming that he holds correct positions on various controversies. People seem surprised, if not cheated, to find that his main research interests -- separation of powers, patent and copyright law, and the legal status of religion -- have little to do with race.

Not that he can avoid the subject. At one point a white colleague he hadn't met sent him a draft of a planned article charging that Carter's writings showed a "lack of sensitivity" to minority concerns. On learning that Carter was black, the critic simply dropped the attack from the final draft rather than amplify or defend it. "In his eyes, my blackness evidently provided an immunity from the charge."

It may not provide him with a similar immunity when it comes to the recriminations of his fellow blacks. Already Harvard psychologist Alvin Poussaint has declared that if Carter feels uneasy with racial preferences, as by the evidence of this book he does, he should quit his Yale post so it can be filled by someone with fewer qualms. (The New York Times letters section seems to serve as a sort of bulletin board for resignation calls these days, having also recently run Joyce Carol Oates's curt demand that Joseph Epstein, accused of improper witticisms, step down as editor of The American Scholar.)

The ultimate dread of someone in Carter's position is being labeled a "black conservative," which seems tantamount these days to being drummed out of the race. He has seen it happen: to Glenn Loury (called "treasonous" by Benjamin Hooks); to Shelby Steele ("a basket case," according to Amiri Baraka, who finds even Spike Lee a sellout); to William Lucas (merely "biologically black," in Representative John Conyers's revealing phrase); to Clarence Thomas (pick your own calumny from this morning's paper); and, of course, to Thomas Sowell (worse, Carl Rowan suggested, than Vidkun Quisling). Such dissenters may not have a bright future in tomorrow's academy: Harvard law professor Derrick Bell warns that "the ends of diversity are not served by people who look black and think white."

Precisely because Carter feels a sense of racial solidarity, he writes with feeling on how hurtful such charges can be. Winning the esteem of (some) whites, he says, may be no great consolation for being ostracized by the equivalent of one's own family. Unfortunately, "while there is a magnificent tradition of black intellectual dissent in the U.S., there is no comparable tradition of black intellectual tolerance; our history as a people has been to cast out those whose views make us uncomfortable."

If it will help spare him such casting out, it may be worth noting that Carter, like Steele, disavows the conservative label, and it's not for the rest of us to pin it on him. True, he has spoken at gatherings of the Federalist Society, and he quotes Clarence Thomas at sympathetic length here. Even more tantalizing, he departs from Left orthodoxy on some important issues in constitutional law. But none of that is really incompatible with the role of open-minded liberal.

When you get right down to it, Carter's views on Topic A will strike many conservatives as unsatisfactory. He favors efforts in Congress to shift burdens of proof onto employers accused of misdeeds. And he seems to think that even if the recruitment and admission stages are stacked, things can be put right -- perhaps already have been -- by insisting that applicants sink or swim once they reach the classroom or workplace. Thus he dismisses as "rather silly" the old chestnut about whether you'd choose to be sawn open by a surgeon who benefited from affirmative action, saying the real question is not whether he deserved to get into med school, but how he did once he got there.

But it's not so silly. Universities face legal pressure to retain as well as admit minorities, which can mean pressure to grade leniently and dispense with other barriers to the granting of the eventual license or diploma. New York's Baruch College, which mostly admits far-from-privileged kids but is tough in its grading, got in trouble for this -- paradoxically being threatened with loss of accreditation for not lowering its standards. Similar retention-and-promotion pressures apply at later stages of training; if med schools are an exception, they're an unusual one.

And is it really an "insult" and "demeaning," as Carter thinks, for hiring committees to draw up separate lists of minority candidates? Or just an entirely predictable response to today's legal demands? In general, for a law professor, Carter has oddly little to say about the role of lawsuits. This is, after all, not mostly a matter of blundering good will. It is a matter of force and confiscation. The affirmative-action system is run by threats to inflict pain and expense, to subpoena records of the tenure meeting and grill the co-workers in harrowing depositions. It has little to do with racial amity. It is litigation.

Even when not convincing, Carter is cautious and wants to be fair to both sides; the corresponding defect is an overdrawing of distinctions, so that his best insights tend to be preceded by a hem and followed by a haw. In his more inhibited moods he can come up with more hedges than the Hampton Court maze, and more on-the-other-hands than the six-armed Shiva. The pace picks up when he moves from abstraction to factual circumstance, as in his personal recollections and some brief but intriguing passages on black intellectual history.

What stands out most brightly, in fact, is Carter's affection for freedom of thought. People overcome racialism when they come to value something else more; in Carter's case that something is everyone's latent power "to use rational faculties to distinguish wisdom from folly." It doesn't take a white or a black mind to explode a fallacy; it takes a mind.

That is why Carter scorns the "diversity" notion that black thinkers can contribute insights that whites could never reach on their own, the claim to "speak, in effect, in a language that others cannot hope to understand." As he points out, this is an assertion that implies its humiliating converse. And it is why he opposes the "temptation to try to make the world shut up" by deploying campus speech codes against unwanted opinion. He considers it "another sign that we are losing the moral high ground, for there was a time when the civil rights movement had no reluctance to debate."

The rest of us should wish him well in his call for "an end to the enforced isolation of dissenting black intellectuals"; there will be plenty of time to thrash out our disagreements after tongues are untied.

Judge Not...

[Review of Guilty: The Collapse of Criminal Justice by Harold Rothwax (Random House). Originally published in Commentary, May, 1996]

In Detroit, a rapist held fourteen-year-old Angela Skinner captive in his apartment, threatening to shoot her if she tried to escape. When police broke down a padlocked gate to free her, she led them to a closet where the man kept his guns. The rapist was convicted, but on appeal a federal court excluded the weapons from evidence and overturned his conviction because the police had obtained Angela's permission alone to look in the closet, and not his.

To much of the American public, stories like this are familiar, and infuriating: ever since the Warren Court proclaimed a series of new rights for criminal defendants in the 1960's and 1970's, the bad guys have gotten off on technicalities and crime rates have soared. Yet members of the legal establishment see things differently. Tales like Angela's, they say, are atypical; the new constitutional protections undercut relatively few prosecutions, and in any case the origins of the crime wave lie outside the legal system. Thus, a 1988 American Bar Association (ABA) report complains that "the public mistakenly looks to the criminal-justice system to eliminate the crime problem," and contrasts that unlettered view with the perspective held by "professionals," like the ABA's own members, who know the courts play "a more limited role in crime control and crime prevention."

The ABA's view has become a bit less tenable with the appearance of Guilty: The Collapse of Criminal Justice. Harold Rothwax, a judge in the New York State courts for the past 25 years, is nothing if not an experienced observer of the Warren Court doctrines in action, and he reports that they do in fact pose a big obstacle to putting malefactors behind bars. What makes Rothwax's testimony all the more piquant is his background: before joining the bench he practiced as a criminal-defense attorney for twelve years and also served as vice chairman of the New York Civil Liberties Union, a central shrine for the veneration of the Warren Court.

Guilty starts in familiar territory--the Miranda decision requiring police to advise arrestees of their right to remain silent; the exclusionary rule, which directs a judge to suppress even highly probative evidence when the police have stepped over a line to acquire it; and the modern trend toward excluding confessions given in police custody because they may have been coerced. Rothwax then goes on to explore less well-known topics, like the state statutes that enforce the constitutional guarantee of a speedy trial. In one egregious example, a Brooklyn man, charged with shooting his landlord, was apprehended after skipping two court hearings but was then let go on the grounds that the state had deprived him of his right to a speedy trial by failing to be sufficiently diligent in trying to catch him.

To Rothwax, the problem with the Warren Court's innovations is not only that they occasionally let the guilty go free; they also make the process numbingly cumbersome for everyone else. As a result, the difference between an outrageous marathon like the O.J. Simpson trial and the average court case is mostly one of degree, not of kind. Not everyone can afford a Dream Team, but even humble defendants, laments Rothwax, can watch judges "sitting by helplessly while attorneys are visibly engaged in an attempt to twist or foreclose the truth."

Current search-and-seizure doctrine abets this situation by leaving it hopelessly unclear when police actions will or will not be upheld in court. This, in turn, results in lengthy disputes that grind down the will and ability of prosecutors to prosecute. "If," Rothwax writes, "a street cop took a sabbatical and holed himself up in a library for six months doing nothing but studying the law on search and seizure," he would still not know how to obey the law-even if the state's chief justice agreed to ride along in the back seat of the patrol car to offer advice.

In style and in tone, Guilty is closely modeled on Philip K. Howard's successful The Death of Common Sense. Like Howard, Rothwax excels at storytelling while sometimes ducking hard issues by an appeal to "common sense," a concept that seems these days to serve much the same interpretive function some Protestant theologies once assigned to "inner light." The book is a quick read, concealing artful organization beneath a seemingly rambling surface, and in style it is admirably clear and direct, though occasionally falling into cliche or solecism. The fact that it is without source notes, bibliography, or even an index may tempt some readers to dismiss Guilty as a kind of talk-show appearance between hard covers; it is not.

As for Rothwax's concrete recommendations, they are not really as radical as one might conclude from the peals of outrage that have greeted this book from some quarters, most notably lawyers working the defense side. For instance, Rothwax favors sharp cuts in the number of peremptory challenges to jurors, an idea embraced by many other reformers as well. His proposal to allow juries to draw adverse inferences from a defendant's silence, outlandish as it may sound to contemporary ears, would do no more than restore American law to where it stood as recently as 1965. A sharper break from the past is his suggestion that we drop the requirement of unanimity among jurors, in favor of 11-1 or even 10-2 verdicts. Unfortunately, the main effect of such a change might be less to avert hung juries than to reduce the amount of time juries spend in deliberation--not necessarily a desirable objective.

Rothwax also makes a strong case for reform of "discovery" statutes. These require prosecutors to hand over information in their possession--witness lists, recordings and notes of interviews, and the like--to the defense before trial. In the old days, the defense would have a right to such material only if it tended to exonerate the accused. Newer laws require far more material to be handed over, at penalty of a mistrial, in order to avoid surprise or "ambush."

These laws, however, routinely encourage defense attorneys to tailor their stories so as to fit the contents of prosecution files. "We'll devise a defense," said O.J. Simpson attorney Robert Shapiro, "once we know what the state has to offer." In Judge Rothwax's own court, a gunman initially claimed that he had not been the one who shot at a busload of hasidic students on the Brooklyn Bridge; then, having been positively identified, he claimed to have shot in self-defense; then, after it was established that the students had been unarmed, he fell back on an insanity defense. Similarly, a burglar-rapist initially claimed his victim had voluntarily dated him and consented to sex; when it was revealed that she spoke not a word of English, he revised his story to say that he had not been in the room with her at all. Of course, in all such cases a jury hears only the final version.

In interviews and news stories, Rothwax has emphasized that he does not regard his book as hewing to any particular ideological line, and in fact he does not go as far in his proposals for reform as many conservative writers on crime. Thus, he does not object in principle to the exclusionary rule, and his hopes of clarifying search-and-seizure doctrine leave him agreeing with the "result" of most current Supreme Court law, if not its "reasoning." His chapter on plea bargaining defends a practice which has been assailed by other analysts of the criminal-justice system.

Much of Rothwax's case boils down to a plea for wider judicial discretion; everything, he says, should have an exception "so far as is reasonable." In one sense, such latitude is long overdue. After the Simpson debacle, almost everyone (except trial lawyers) would be happy if judges took a firmer hand in managing trials: kept questioning on track, cracked down on attempts to manipulate the jury; and so forth.

But Rothwax also favors widening the discretion of judges to interpret the law. For example, instead of the current "mechanical' deadlines for speedy trials, he would give judges permission to throw out unreasonably stale cases and send the rest forward. There are many objections to such a change, among them that it could end by widening the gap between hard-line judges (who would probably tend to throw out fewer cases) and soft-line ones.

Yet, whatever one thinks about any one of Rothwax's proposals, the portrait he paints of the criminal-justice system is a damning one. Many now agree that it is time to rethink the Warren Court legacy: if the publication of Guilty moves us toward the day when we can begin to debate which parts of that legacy should be discarded and which retained, it will have made a lasting contribution.