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August 29, 2006

A Story That Doesn’t Have a Leg to Stand On

[Originally appeared in the Wall Street Journal, Mar. 27, 1995]

You've probably heard a lot lately about the poor guy in Tampa who went to the hospital to get his leg amputated and woke to find they'd taken off the wrong leg. Thanks to the skill of the litigation lobby in spinning the media, there's also a lot about the case you probably haven't heard.

It happened last month at University Community Hospital when Dr. Rolando Sanchez mistakenly removed the left rather than right leg of 51-year-old Willie King. Making matters worse were reports of two unrelated incidents of negligence -- one fatal -- at the same hospital, Tampa's third largest.

The theme was simple. This is the kind of thing that goes on in hospitals, and only lawsuits can stop it. If the wicked Republicans succeed in limiting damages in malpractice suits, patients like Mr. King will be both more numerous and less well reimbursed.

Parts of the press bit hard. The Associated Press, in dream-come-true coverage for opponents of legal reform, led off with the King case as an example of the kind of incident likely to go undercompensated "if the House of Representatives gets its way".

ABC's World News Tonight was equally unsubtle about the moral to draw, quoting Mr. King's lawyer: "Congress should be working to make doctors more accountable for their mistakes, not less." Newsweek quoted the head of the Association of Trial Lawyers of America saying something rapturous about lawsuits. Ralph Nader went on CNN.

Some press accounts added a few more details. Remarkably, Mr. King, a diabetic retiree, had not reacted to his loss with anger, at least not at first. The hospital had promptly acknowledged the error and said it was miserably sorry.

Dr. Sanchez, for his part, did not seem to fit the profile of a problem doctor. A New York University Medical School grad with an impressive background in teaching vascular surgery, he had a 14-year record unblemished by official complaints. Colleagues and former patients were vocal in his defense. The hospital itself, despite the cluster of accidents, had had no unusual rate of past problems.

One question cried out for an answer. Operating rooms are brightly lit. How could an experienced surgeon mistake a healthy leg for one with gangrene? At his news conference, Mr. King's lawyer, Peter Brudny, pursued this theme. The difference "should have been obvious", Mr. Brudny said. "Willie never would have consented to have the right leg removed if he didn't feel he had a good left leg the rest of his life."

When the hospital finally spoke to the press, after the story had been beamed worldwide, another side of the story emerged. Most of its briefing was devoted to questions of how the error could have happened and a recurrence prevented. But the hospital's chief of staff, Dr. Brendan O'Malley, himself a diabetes specialist familiar with Mr. King's case, also added a few salient facts:

* Mr. King suffered from progressive vascular disease in both legs arising from diabetic complications that had affected several organs. He was losing both legs to these complications; the question was in what order they would go.

* Both of Mr. King's legs had undergone extensive assessment. According to many of the tests, his left leg was actually farther gone than his right, its arteries 90 percent occluded. This severely diseased leg was in no way normal-looking, and would have had to be amputated in "a very short period of time". But King had asked doctors to remove the right leg because it was giving him more pain. There followed the goof.

To be sure, Mr. King's attorney flatly denied Dr. O'Malley's assertions, and with some vehemence. "He never had any serious problem whatsoever with his left leg," Brudny said of his client. "Never, ever." But to a journalist, the direct contradiction between the two accounts should make the story more interesting, not less.

Neither AP nor ABC breathed a word about the condition of King's other leg. But they wouldn't have had to do much digging. The subject had come up in Tampa Tribune coverage a week and a half earlier, available on Nexis. Newsweek was told but omitted the fact.

Now the full story may never come to light. The hospital's and Mr. King's lawyers settled their dispute, clamping a confidentiality lid on the case.

The spinmasters of the trial bar have moved on to new daily themes, such as the supposed predilection of tort reformers for oversimplified horror stories. And the press, having availed itself of such a good tale, wouldn't want to spoil it now. As columnist Diana McLellan once put it with a wink: "Never check stories out, dear. That's how you lose them."

April 8, 2006

Don't Steal This Book

[Review of Property Matters by James V. DeLong. Originally appeared in the Wall Street Journal, April 2, 1997]

In Schiller’s William Tell, the rural Swiss realize their ancient liberties are in danger when the new bailiff rides up to accost one of them for the offense of erecting a dwelling on his own land. “I am the Regent in the Emperor’s stead/And will not have the peasants building houses/Of their own will and living lives as freely/As if they were the masters in this country.” Before long, the villagers fear, the new overlords will turn their very forests and meadows into game preserves for the amusement of courtiers from the city.

Today it’s routine to read of a landowner denied permission to build a house, lay down a gravel path or rebuild an embankment. Much of rural America is in open revolt against the laws that require such permissions. Yet environmental spokesmen still profess to believe that developers are just pulling strings to simulate discontent. “To this day,” writes James V. DeLong, “neither environmentalists nor government officials seem to understand the anger of the landowners.”

They’ll have a better clue if they read Property Matters: How Property Rights Are Under Assault and Why You Should Care (Free Press, 390 pages, $27.50). Mr. DeLong, a Washington lawyer, aims to persuade his word-pushing neighbors that we all share a stake in safeguarding property against arbitrary confiscation, even if we hold assets in less earthbound forms such as pensions, condos and copyrights.

The federal laws and regulations preserving wetlands and endangered species, observes Mr. DeLong, fit a pattern. Preservationists identify some good or amenity that an affluent society might wish to buy more of. The next step is to draft laws simply commanding owners to go on providing it, often barbed with criminal penalties. Perusing testimony on the wetlands program, Mr. DeLong finds one witness after another assuming that if he has shown that swamps or tidal marshes are ecologically valuable, he's proved the case for ordering their owners to maintain them forever at whatever sacrifice. “The equivalent would be for an admiral to say that because the United States needs a navy, the government can take your land for a dockyard without paying you.”

It used to be that Uncle Sam would buy land when he expanded a national park or set aside a wildlife refuge. That’s the method contemplated in the Bill of Rights, whose Fifth Amendment reads, in part, “nor shall private property be taken for public use without just compensation.” Now officials have learned the trick: leave title with the owner and freeze use. Does the plot’s value fall by 50% or 95% once its owner is forbidden to do much more than hike on it? Tough: Absent physical invasion there’s been no taking, so not a dime is owed. Or that’s what officials keep arguing with a straight face.

For some decades the Supreme Court banished the takings clause to what Judge Douglas Ginsburg has termed the “Constitution in exile” -- i.e., provisions too inconvenient to the modern state to enforce. In 1987, however, the landowners began winning a series of victories. Yet the court has declined to correct the regulators’ overreaching interpretions of their legal charters.

The law bans taking an endangered creature, which is now absurdly read to forbid altering habitat, very loosely defined: No trace of the species need ever have been seen on a property, for instance. Congress’s right to regulate the filling of navigable waters has spawned a wetlands program that reaches, according to a former regulatory chief of the Army Corps of Engineers, “depressions in corn fields, hundred-year floodplains, pastures and meadows, dry woods, weed-covered vacant lots, moist tundra, winter-wet grassland depressions, pine-palmetto flatlands, and dry desert washes.” Drafters of regulations, says Mr. DeLong, actually prefer vague prohibitions that force landowners into negotiations in which the agency bargains from strength. One result has been a huge transfer of power and wealth to lawyers on both sides.

A skilled explainer, Mr. DeLong sets himself a handicap by putting much of his drier material into his first hundred pages. He goes on to tackle an encyclopedic range of issues, from public-land grazing and forestry to irrigation and zoning. Though packed with valuable information and analysis, these sections also permit passion to dissipate, and by the time the author gets to intellectual property (where he finds the law in relatively good shape) readers may sense topic sprawl.

Having to pay for takings, suggests the author, imposes both a pragmatic and a moral discipline on those who wield power. “If you must pay, then it forces thought about what is really valuable and what is not. If the property is free, the outcome is obvious: take everything you can get your hands on.” As for the moral side of things, well, trading is ethically superior to stealing. “The pro-property forces should stand firmly where they belong, on the moral high ground.”

A Small Canadian Firm Meets the American Tort Monster

[Originally appeared in the Wall Street Journal, February 14, 1996]

Mississippi doesn't run a state lottery, but it won't ever feel the lack so long as its juries hand out $500 million jackpot awards like the one that just missed bankrupting Loewen Corp.

The British Columbia-based funeral-home chain has emerged from what Reuters called "a small company's worst nightmare" -- complete with stock crash to $8 from $41, publicity about its supposedly "seamy" practices and an extorted settlement on the steps of bankruptcy court. Founder-chairman Ray Loewen says that after surviving this "terrible travesty of justice," with its "outrageous" and "incomprehensible" damage award, his firm "will do everything we can to help the tort reform movement across the United States."

It all began in what seemed a routine contract squabble. The fast-growing Canadian firm, which had bought local funeral homes in Mississippi, found itself sued by Jerry O'Keefe, a former Biloxi mayor and owner of several funeral homes, after it ended his exclusive right to sell funeral insurance in the homes that Loewen had bought. The parties settled by agreeing to cut O'Keefe in on the action: Loewen would buy two of his funeral homes and the two rivals would combine funeral-insurance operations. But during the due diligence process Loewen backed out. The O'Keefe group went back to court, this time charging fraud and antitrust violations.

Things still seemed pretty low-risk at this point: Loewen estimates the funeral homes and related enterprises at stake were worth $ 8.5 million, and in fact turned down a chance to settle the case for a few million. Then what a Loewen exec calls "a very clever, percentage-fee lawyer" got his hands on the case. Peter Hyndman, Loewen's corporate secretary and legal officer, told the Canadian press that the strategy was to "incite" the jury. "Much of the plaintiff's case was not about contractual matters, but an attempt to paint our company as ruthless predators oppressing the poor people of Mississippi."

That strategy worked. After a seven-week trial, the jury picked $100 million and $400 million as suitable numbers for compensatory and punitive damages, sums that would wipe out most of the Canadian firm's net worth. The damage figure "is Alice in Wonderland -- it's beyond belief," goggled stock analyst David Jarrett of Gerard Klauer Mattison & Co. in New York. A bond downgrade and stock crash followed.

Defenders of the litigation biz like to point out that judges can reduce or set aside excessive verdicts. But presiding state judge James Graves Jr. refused to do either, and the Mississippi Supreme Court ruled that if Loewen wanted to pursue an appeal it would have to post a bond for 125 percent of the award -- $ 625 million -- within a week. Needless to say, Loewen decided it would be prudent to settle. To get out of the litigation, the firm agreed to pay well over $100 million -- $50 million cash, 1.5 million newly issued shares of its stock (which has recovered to $27) and annual payments of $4 million for 20 years. The threat of bankruptcy was what allowed the firm to settle even this cheaply.

Ambitious trial lawyers will wonder: How can I bring this kind of success to my own practice? Helpfully, the Vancouver Sun has published extracts from the closing arguments of winning plaintiff's counsel Willie Gary:

* Hype pain and suffering. Seasoned businessman though his client may have been, his damages included not only business losses but an "awesome" amount of mental anguish and emotional distress.

* Dump on outsiders. Decorated war veteran Mr. O'Keefe "fought for his country" and was now willing to "stand up for America" by suing this rich, foreign company. You'd have thought World War II was waged against the Mounties. The lesson wasn't lost on the Canadian press: "Mississippi and Alabama have developed reputations as dangerous places for out-of-state corporations" which "have been hit with large punitive damages in seemingly minor cases," observed the Montreal Gazette. In October, another Canadian company, Crown Life Insurance Co., under siege from a $50 million Texas jury verdict and two dozen other state-court suits, actually went so far as to declare itself a "foreign state" after a quick move in which the provincial government of Saskatchewan bought stock in its parent. If successful, the maneuver will let Crown get into federal court and avoid future jury trials.

Ironically, many Canadians already viewed Loewen as an American company in all but name: it reports financial results in U.S. dollars, reflecting the fact that 90 percent of its revenues come from south of the border, along with the great bulk of both its 10,000 employees and the investors who got dunked for such huge sums.

* Pound the table over conduct that couldn't have hurt your client. Mr. O'Keefe would have lost if Loewen had slashed prices, but instead the newcomer tried to move its homes upmarket by introducing more expensive caskets and the like. "Taking advantage of the needy and downtrodden" was the way plaintiff's counsel Michael Allred puts it, but somehow magically transmutable into damages payable to the affluent Biloxian and his lawyers.

* Play the race card. Loewen thought it might get points with the two-thirds-black jury by citing its exclusive cooperation arrangement with the largest black church group, the National Baptist Convention. This was naive. Mr. Gary simply established that other partners had negotiated more favorable terms. "This is money they're going to get off 8.2 million African-Americans, a contract that was clearly without question unfair to those members, and you know it."

* Cash in your "promise". In many state courts, lawyers screening prospective jurors can get them to "promise" they'll vote a certain way. Mr. Gary: "You said you'd do it, you did, members of the jury....I asked if anyone here, if you felt comfortable sitting on a case that could exceed $ 850 million, raise your hand, and without hesitation, all 12 of you, you raised your hands."

Amazingly, a federal advisory panel is actually proposing rules that could bring such state-court abuses to the federal courts by ensuring lawyers there a right to grill prospective jurors directly rather than, as is now usual, through a judge. March 1 is the deadline for written comments to be sent to Peter G. McCabe, secretary of the Committee on Rules of Practice and Procedure, Administrative Office of the U.S. Courts, Washington, D.C., 20544.

If anyone cares to prevent future outrages like the one that laid Loewen low, derailing this idea might be a good place to start.

How Employers Are Forced to Hire Murderers and Other Felons

[Originally appeared in the Wall Street Journal, "Rule of Law" column, June 18, 1997]

Viewers of Good Morning America and NBC Nightly News recently got to meet 25-year-old Hassan Smith, who wants to become a Boston cop but faces a small obstacle: Nine years ago he gunned down a young man on a Roxbury street in a gang dispute. Boston police commissioner Paul Evans vows "over my dead body" will the convicted killer get a city badge and 9-mm Glock.

But city officials may have no choice but to hire Mr. Smith, assuming he makes it past the exams. Not only does Massachusetts law appear to instruct cities to disregard juvenile records in hiring for public service jobs, but a variety of other laws make it legally hazardous for employers, public or private, to turn away job applicants with serious rap sheets.

Consider the trouble a Wisconsin nursing home ran into recently. Last October an ambulance rushed 23-year-old Melinda Belden’s newborn to the hospital after it had stopped breathing, police said, from inhaling fumes from the crack cocaine the mother had been smoking. When the Marquardt Memorial Manor in Watertown withdrew its job offer to Ms. Belden, she filed a complaint. In April the state civil rights agency found probable cause to support her claim, saying the nursing home had not done enough to establish that the pending charges of felony child endangerment were substantially related to a job at a nursing home -- helpless old people apparently being legally distinguishable in its view from helpless young people. The case was dropped when Ms. Belden failed to pursue it.

The federal Equal Employment Opportunity Commission has long considered unlawful any general employer policy of turning away persons convicted or charged with serious crimes. "Because it disproportionately excludes members of certain groups from being hired, it can be looked at as discrimination", the commission’s Kelly Goode told a Knight-Ridder reporter in 1995. Blacks and Hispanics are more likely to have records than whites.

Police forces are no exception. The police commissioner of Cambridge, Mass. made headlines a few years back by threatening to resign after City Hall leaned on him to hire eight recruits whose rap sheets sported such charges as assault and battery and receiving stolen property. "If you bypass someone for a minor criminal offense, that person can challenge you and get a restraining order, tying up the whole list," explained the city manager.

The EEOC supposedly lets employers take into account convictions that are recent, serious and "job-related". Thus it says a just-paroled embezzler needn’t be offered a bookkeeping job. But it takes an ultra-narrow view of what is job-related. In a 1989 case it demanded a trucking company hire felons to handle "high-risk" freight such as computers. It lost in court after federal judge Jose Gonzalez acidly noted that if applicants "do not wish to be discriminated against because they have been convicted of theft then they should stop stealing".

But few employers want to spend years and fortunes in court validating such a policy -- or risk a big back pay award should a court disagree with them. When it doubt, an employer has an incentive to take the applicant. Even asking about criminal records can get an employer sued.

Advocates of compulsory felon-hiring sometimes portray critics in the role of the vengeful Inspector Javert of "Les Miserables". To give employers more freedom in these matters would be to "deny someone a reason to earn a living forever," says Wisconsin state senator Gwen Moore (D., Milwaukee). "This says they can never be rehabilitated." That might be a fair criticism of a law that required employers to reject convicts. But the issue here is whether each employer should be free to weigh the pros and (so to speak) cons for himself.

Plenty of jobs will remain open to the jailbird gone straight, who needs to convince only one employer of his reformed character -- rather than, as at present, invoke legal compulsion to dodge such inquiries entirely. Thus in one early case a theft-plagued New Orleans hotel fought for years in court for its right not to employ as a bellman someone who’d been convicted of receiving stolen goods; yet it was happy to offer him a comparably paid job that did not involve access to guests' luggage and rooms.

Much of the American legal establishment staunchly backs criminals’ hiring rights. In Wisconsin the state bar recently sent out letters strenuously opposing any effort to give employers more freedom to consider records. Last year the state’s docket of 3,000 job-bias complaints included 51 complaining of discrimination based on convictions and 42 based on arrests.

Not that "unfortunate situations", to borrow Hassan Smith’s description of the murder he committed, won’t sometimes recur. Randy Don Landin, who worked for Honeywell Corp., strangled his girlfriend, a co-worker at the company, served four years in prison and was released. The company rehired him. Bad news for co-worker Kathleen Nesser. When she rejected Landin’s romantic overtures, he harassed and threatened her for weeks, then killed her with a shotgun blast in her driveway. Asked about the rehiring decision after the second murder, a Honeywell spokesman explained: "The philosophy we have is that we don’t discriminate when it comes to hiring practices".

Of course, organized lawyers have their own solution to such recidivism: big injury lawsuits against the employer by the victims or their families, thus helping to perfect the sued-if-you-do, sued-if-you-don’t regime we impose on hapless businesses. Such claims are "going to be a huge issue," predicted a New York City attorney who won a big settlement for a department store employee assaulted by a co-worker.

Boston feminists called for wider rights to file lawsuits after a case where a supermarket employee was raped. "We want employers to investigate the backgrounds of employees more thoroughly," said the head of the local chapter of the National Organization for Women, apparently unaware that NOW’s allies in the civil-rights movement had erected one obstacle after another to such investigations.

As she put it: "If an employer is not going to look out for the safety of employees, who is?"

Plaintiffs Lawyers Take Aim at Democracy

[Originally appeared in the Wall Street Journal, March 21, 2000]

In a brute triumph for litigation force and a grim setback for democratic governance, the Clinton administration and lawyers for city governments last week bullied the nation's largest gun maker, Smith & Wesson, into agreeing to a variety of controls on the distribution of its products that the administration hadn't been able to obtain through the normal workings of legislation. Glock and other gun makers appear likely to follow. [Note: this didn't happen, despite predictions in the early aftermath of the S&W announcement.]

With quaint if unintended humor, reporters describe Smith & Wesson's capitulation as "voluntary." In exchange for knuckling under to a long list of demands, which include the adoption of external trigger locks, the development of "smart gun" technology within three years, and extensive controls on the marketing of its products, Smith & Wesson was spared the threat of a direct federal lawsuit and promised a settlement of some of the 30-odd suits filed against it by municipalities. The sheer cost of legal defense against these suits, whatever their outcome, had grown ruinous: a company statement said the deal was aimed at preserving the "viability of Smith & Wesson as an ongoing business entity in the face of the crippling cost of litigation."

Using the deliberate infliction of litigation costs to obtain leverage over an opponent was once considered a breach of legal ethics, but times have changed. Litigators boasted that their attacks would bleed the thinly capitalized gun industry into submission. Housing and Urban Development Secretary Andrew Cuomo warned gun makers that unless they cooperated they'd suffer "death by a thousand cuts." Several makers have in fact gone bankrupt since the courtroom siege began.

Supporters of the new settlement seemed to treat as a virtue that it doesn't have to be run by Congress for approval. White House domestic policy adviser Bruce Reed said the agreement showed that "the public good doesn't have to be held hostage to legislative stalemate," while the New York Times reported that the deal has "opened a new avenue for regulating the firearms industry without action from Congress," where gun-control legislation has fallen victim to "partisan gridlock."

"Legislative stalemate" and "partisan gridlock" are merely pejorative terms for the normal workings of democracy. When the legislative process is working, measures that are passionately opposed by an important constituency within the majority legislative party do not tend to hurtle to a speedy enactment.

Advocates of the hire-a-lawyer brand of gun control make a habit of thumbing their noses at the constitutionally specified lawmaking branch ("All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." That's hard to miss, being Article I, Section 1.)

"You don't need a legislative majority to file a lawsuit," proclaims Elisa Barnes, the chief plaintiffs lawyer behind a private federal suit against gun makers that went to trial in Brooklyn, N.Y. Miami-Dade County Mayor Alex Penelas, according to one news report, "said he was using the courts in an attempt to crack down on the gun industry because the Florida legislature refused to do so. 'Every year that I've gone to the legislature we have basically been told to take our case elsewhere,' he said."

Given the ordinary political instinct to protect one's turf, you'd think the Republicans who control Congress would unite in wrath at the Clintonites' invasion of their legislative prerogatives. Moderate and conservative congressmen would rise together, you'd think, to declare that -- whatever their differing views on the merits of one or another gun-control measure -- the use of litigation to bypass and subvert democracy is unacceptable. Yet they have been nearly silent. Rep. J.C. Watts of Oklahoma did comment, but his remarks were favorable: "We hail Smith & Wesson for taking a proactive approach to the problem of violence."

Likewise absent from the field, with a few honorable exceptions, has been the American business community. It would surely make a symbolic difference if a few CEOs of companies outside the gun industry chipped in personal checks to start a legal defense fund for small gun makers being bulldozed by the cost of litigation, to give them at least a hope of surviving to fight the suits on the merits. Or if they let it be known that mayors who've signed on to the gun-suit jihad should stop passing themselves off as "pro-business." Not long ago the mayor of Bridgeport, Conn., Joseph Ganim, a gun-suit mastermind who's considered ambitious for statewide office, was feted by a Chamber of Commerce in his local Fairfield County. Hey -- it's someone else's industry he's working to destroy, right?

Conflict-averse businessmen love to grab at the excuse that, well, guns are different. But tobacco and breast implants were different, too. In the next rounds, lead paint, latex gloves, violent videogames and managed-care insurance policies will be different too. Why, these companies' predicament has nothing to do with the litigation threats my industry faces! Thus do businesses wind up conforming to the First Law of Risk-Averse Public Affairs: Never head out to the rescue of anyone who's less popular at the moment than you are.

How unlike the wisdom of the trial lawyers themselves, who in their attacks on American industry have been keenly aware of the advantages of mutual cooperation. As they know well, each successful new round of assault litigation contributes new precedent, new revenue, new political alliances and newly honed techniques to assist in future rounds.

Thus the gun round built on the tobacco round in its modus operandi: Demonize the opponent from day one. Fly around the country signing up sympathetic plaintiffs, particularly governments. Shop for favorable judges and juries. File suits rapidly all over the place on different theories, on the assumption that something's bound to stick. Lavish resources on working the press and sympathetic interest groups. Wait for the chance to "turn" one of the defending companies against its competitors.

This is how important public questions get hammered out secretly in the back offices of influential lawyers and presented to the public as a fait accompli. So much for the integrity of democratic process.

January 13, 2006

The Law on Trial

[Review of "Beyond All Reason" by Daniel Farber and Suzanna Sherry. Originally appeared in the Wall Street Journal, October 14, 1997].

The vogue for identity politics in humanities scholarship has been talked to death, while the similar trend in law schools has drawn far less attention. Yet alarming things can happen, observe Daniel Farber and Suzanna Sherry in "Beyond All Reason" (Oxford, 186 pages, $25.00), when “the cloistered world of the academy meets the world of law and coercion”.

"Beyond All Reason" strikes me as a work of merit, a view that might draw cavils from Harvard Law School’s Duncan Kennedy (“Judgments of merit are inevitably culturally and ideologically contingent”) or Duke’s Stanley Fish (“there is no such thing as intrinsic merit”), to say nothing of Ann Scales of the University of New Mexico (“feminist analysis begins with the principle that objective reality is a myth”). Mr. Farber and Ms. Sherry, both law professors at the University of Minnesota, respectfully disagree with these deconstructionist notions.

Their targets are “radical multiculturalists”, a group that includes critical race theorists, legal feminists and other identitarians. According to a New York Times account in May, advocates of critical race theory are now on the faculty at almost every major law school. This group of thinkers “holds that people’s perspectives on events are overwhelmingly determined by their racial background” to the point that “competing racial versions of reality” come to replace the earlier notion of an objective standard of accuracy.

Critical race theory wants to bring race to the very center of the analysis of most situations,” one adherent told the Times. The traditional view of, say, tax audits, would be that some few audits might be affected by the gender or race or accent of the taxpayer or IRS agent. That presupposes a previous model of an “untainted” audit in which identity factors play no role. Pounce! Such a supposedly untainted model is actually gendered (male), white, Anglo, and so forth.

Doting on subjectivity, critical race theory relies heavily on a type of storytelling that can range from memoir to parable to sci-fi tale. As the authors note, writers on law have always spent a lot of time recounting cases. But now Columbia’s Patricia Williams writes at length of a personal racial indignity she endured at a Benetton store; others offer accounts of experiences on a train or in a taxicab. New York University’s Derrick Bell pens a fable of space visitors who propose to buy blacks and remove them from American society, an offer to which his fictional whites respond by behaving -- are we surprised? -- badly.

Problem number one with the new-style stories is that they’re not checkable even in principle. Most legal discussion derives from records of public disputes in which each side has had some chance to get its version on the table. It would be nice to know what the Benetton store’s personnel have to say about Ms. Williams’s story, but we’re unlikely ever to find out. Instead, write Mr. Farber and Ms. Sherry, “[personal] stories lend themselves to several conversation-stopping moves”: announcing offense that one’s story has been challenged or accusing a rival storyteller of inauthenticity or of trying to speak for someone else’s group.

Not all race theorists go as far as Alex Johnson Jr. of the University of Virginia, who has written that the “voice of color” is one that “rejects narrow evidentiary concepts of relevance and credibility”. Still, Mr. Farber and Ms. Sherry believe the movement has become “a self-sealing ideology that resists punctures by evidence or logic”. Thus Catharine MacKinnon casually dismisses reports that Denmark and Japan, though tolerating pornography, have very low rates of rape; her explanation is that faced with governments so evil, women do not report sexual assault. Critical race theorists have devoted considerable ink to (baldly self-serving) assertions that minority law profs find it harder to get tenure offers at prestigious schools than do similar white counterparts, yet Farber and Sherry adduce evidence that the opposite is the case. And while even cautious discussion of such issues is apt to bruise feelings, many of the radicals rub things raw with a truly epic incivility, documented in detail here.

Intellectually, the new theorists reject the Enlightenment with its “aspiration to universalism and objectivity”; practically, their most important influence has been to undermine the Enlightenment-derived tradition of free speech by leading efforts to criminalize or attach civil liability to speech they believe hurtful. While Mr. Farber and Ms. Sherry concede that most of the radicals are not themselves anti-Semitic, they also charge that the anti-Enlightenment project of rejecting a common intellectual life guided by reason and injecting racial consciousness into every realm inevitably prepares the way for anti-Semitic sentiment.

As the authors note, the ideas they deplore can turn up anywhere on the spectrum: Thus defenders of creationism have smoothly borrowed from deconstructionist attacks on the authority of science. At a time when some on the right as well as left are trying to turn individual liberty and the Enlightenment into swear words, these good old causes could use some help. They get it here.

January 3, 2006

Have the Harassment Rules Changed?

[Originally appeared in the Wall Street Journal, "Manager's Journal", April 6, 1998].

According to the Rev. Jesse Jackson, last week's dismissal of the Paula Jones lawsuit was "planned by God." Mr. Jackson is not the first to confuse federal judges with deities. But his surmise of divine intervention does recall the old saying that God looks after drunks, children and the United States of America -- or in this case leaders of the United States of America who are alleged to have behaved like drunken children. At any rate, now that Judge Susan Webber Wright has thrown out the world's most famous employment lawsuit, what can we conclude about the future course of harassment law? In particular, what does it mean for managers worried about their own organizations' liability exposure?

On the one hand, the case has prompted a vast public debate about the dangers and excesses of this newly grown branch of the law, and the public's newfound skepticism about harassment law is likely to be helpful over the long run to employers, as well as to individuals targeted by poorly founded harassment claims. On the other hand, it would be rash to read too much significance into the details of last week's ruling, which (1) doesn't signal any particular change of direction in harassment law, and (2) offers little guidance or precedent for anyone seeking to avoid such charges--an unsurprising fact, given that the Jones case was never very typical of the harassment docket.

'Open Season'

Pundits are busy offering a host of supposed lessons of last week's ruling, most of which should be received with great skepticism:

# From now on, it's one free flash or grope per employee. It's "open season on women here in this country," claims Jones spokeswoman Susan Carpenter-McMillan. "Sleazy bosses popping corks all across America" ran the headline over Andrea Peyser's New York Post column.

But as most commentators have realized, Ms. Jones lost not because the judge declared any sort of blanket immunity for the general category of behavior charged, but because of the defects in her particular case. Ms. Jones's outrage-related charges were weak because she had trouble showing that she had reacted with the severe distress that most women would presumably experience if they encountered a flasher. Her employment-related charges were weak because she had trouble showing that her later job conditions were affected. Either hurdle might have been overcome had Ms. Jones taken relatively simple steps during her employ with the state, such as visiting a counselor. A would-be harasser would be foolish to imagine he can count on his victims' doing nothing to document their discomfiture.

# Something must have been going on with this judge. To the editorialists at the New York Post, the judge's "shocking and questionable" ruling "raises the suspicion that she was trying a bit of jurist nullification" But other editorialists on the right sharply differed: "In fact, Judge Susan Webber Wright was simply striking a blow for legal sanity in sexual harassment cases," wrote the impeccably conservative Detroit News, while the Chicago Tribune agreed that the judge acted "properly and courageously."

Mr. Clinton may not have been suspiciously lucky to draw this particular judge, but he was lucky. One of the open secrets of our court system is that judges differ enormously one from the next in their willingness to screen cases out at the summary judgment stage. Had Mr. Clinton been sued in many other federal courtrooms around the country, or in many state courts where employment defendants almost never win summary judgment, he would today still be headed for a nightmare trial.

# Now other women will hesitate to press their claims. If they draw the right conclusions from this case, they'll do the reverse of hesitating: They'll file earlier. Most of the distinctive weaknesses in Ms. Jones's case sprang from her extreme tardiness in getting a case together. The statutes of limitation had run out on many of her prospective legal claims, she'd done little or nothing to document key elements of her case, and she'd allegedly said and done a number of things that worked to undercut her eventual claims. Had she consulted a lawyer early on, she would certainly have been instructed to keep a diary, visit a counselor and take other steps aimed at documenting both emotional distress and difficulties encountered on the job.

# Companies are going to feel less under the gun on the issue. Harassment law was full of frightening and unpredictable legal exposure before Wednesday, and none of it has gone away. Employers do win many victories at the summary judgment stage, but such cases are hard to turn into reliable precedent that keeps them from getting sued in the future: Prevailing Supreme Court doctrine encourages lower courts to look at the "totality of the circumstances" in each case anew, rather than developing definite rules that clearly assign or reject liability given a particular pattern.

If a business's operations are confined to one part of the country where federal judges are known as relatively friendly to the dismissal of weak cases at the summary judgment stage, it may have some mild cause to nod with approval. But national employers by definition have to be prepared to be sued anywhere, and would be very ill-advised to relax even if they believe their conduct is beyond reproach.

# See, the system works after all. Defenders of the American litigation system are sure to trot this one out, as they did after the O.J. Simpson civil case. But many others will draw a rather different conclusion: Even if the defendant wins in one of these cases, he loses.

Among employment lawyers, a widely observed rule of thumb is that if a case is destined to get past summary judgment, the defendant should offer a substantial settlement. But the lesson of Jones v. Clinton is that even cases that aren't strong enough to make it to a jury can inflict ruin on defendants' reputations and pocketbooks. For months experts have criticized Mr. Clinton's refusal to settle the Jones matter with a cash payment at an early point. Mr. Clinton still looks unwise not to have done so, given the damage his reputation has suffered as a result of the "discovery" process. Even if Bob Bennett had been clairvoyant enough to know for certain that the case would be disposed of last week, he would still have been well-advised to recommend paying Ms. Jones almost any sum she wanted. What does this tell us about the economics of modern American litigation?

# Now that the president has experienced firsthand the plight of defendants in our legal system, maybe he'll start supporting reforms. Don't count on it. The Jones affair points up the unfairness of any number of rules in our litigation system: the ultraliberal discovery procedures that encourage fishing expeditions, the misbegotten evidence rules that permit harassment complainants to probe the sexual histories of the men they're accusing even if a judge finds the information irrelevant, and the lack of a loser-pays principle. (In harassment law, as in discrimination law more generally, plaintiffs can collect legal fees from defendants if they win, but not vice versa.) In a rational world, we would now proceed to a national debate about how to change those rules so as to protect more defendants against ill-founded claims. But any such reform movement will almost certainly have to proceed without help from the Clinton administration, which now as ever is wedded to the notion of giving litigators the most expansive powers possible.

'Through the Mud'

Clinton adviser David Strauss, a law professor at the University of Chicago, had one of the best analyses of the case's aftermath. "I think we should resist the temptation to say that this shows the system works," he told National Public Radio. "I think it shows something closer to the opposite, which is even a baseless lawsuit that never should have been brought tied up the presidency for many months, dragged his name through the mud, dragged lots of other people's names through the mud, and turned out to be groundless. . . . That just shows the problem with allowing civil litigation to be used as a weapon against the president."

Or, he should have added, against anyone else.

Under the ADA, We May All Be Disabled

[Originally published in the Wall Street Journal, "Rule of Law" column, May 17, 1999]

To understand the latest controversy concerning the Americans With Disabilities Act, the word to keep in mind is "unmitigated."

Karen Sutton and Kimberly Hinton want to be classed as legally disabled on account of their poor eyesight. There's just one catch: it seems the two sisters can see pretty much as well as the rest of us. Ah, their lawyers say, but that's when they're wearing glasses! Ditch the specs, and they're badly nearsighted. Last month, the Supreme Court heard arguments on whether the physical condition of persons wishing to sue under the ADA should be considered in its "unmitigated" state, that is, before any remedial steps have been taken.

The issue has plenty of applications. A second case before the court involves a United Parcel Service driver who wishes to qualify as "disabled" because he'd have a serious problem with high blood pressure if he stopped taking his medication -- though in fact he does take it. Also watching with interest are people who'd be in medical trouble if not for their joint or heart-valve replacements.

In other realms of life we seldom rely on an "unmitigated" definition of disability. For example, if you're applying for disability-benefit checks, it's a bad idea to tell the claims processor that you want the income even though you're perfectly capable of holding down a job and performing common tasks provided you keep your glasses on or take your pills.

Then there's the question of where the concept of remediation stops. For those with impaired mobility or blood-sugar imbalance, prescribed exercise and nutrition may make the difference in avoiding a downward course. Are they entitled to legal rights based on the disability they'd suffer if they started defying doctors' orders? At the extreme, perhaps we should allow persons whose lives have been saved by their medications to exercise their right to ignore mitigation and instead hold themselves out as legally dead.

To be fair, the tangle of disability-definition gets a lot more complicated than this. Economist Carolyn Weaver says the government has used more than 20 different definitions of disability for various purposes. And the ADA's is among the vaguest of all.

At the Supreme Court last month, you might say the theme was unmitigated confusion. "I don't see how to get this statute to work," said Justice Stephen Breyer. "I'm at sea," confessed Justice David Souter. As Justice Antonin Scalia waved his glasses in the air -- seven of the nine Justices wear glasses -- the court seemed to realize in one magic moment that under the more liberal interpretations of the ADA every one of them could count as protected-class members as could "a majority of Americans," as Justice Scalia said. That's a result at odds with the law's preamble, which cited 43 million as the number regarded as disabled then.

By this point, to be sure, it would seem late in the day to stop the majestic progress of disabled-rights law from bestowing a right to accommodation on everyone who differs physically, mentally, or behaviorally from the norm. Last year the Hartford Courant reported that nearly one in three high schoolers in affluent Greenwich, Conn., are now officially regarded as disabled, entitling them to various benefits ranging from individualized tutoring to laptop computers. Soon we may achieve a Lake-Wobegon effect in reverse, in which we will all get to be below average.

Unmitigated gall is more the style of a new study that claims that the ADA is actually unfairly tilted toward business defendants. Hyped by its sponsor, the American Bar Association's disability-rights commission, the study purportedly found employers winning 92% of ADA lawsuits and almost as high a share of Equal Employment Opportunity Commission proceedings; it got uncritical coverage from the Associated Press, USA Today and CNN.

Of course a different way to interpret the same numbers would be as indicating that 92% of ADA cases are shown unmeritorious. But in fact the numbers mean nothing at all because of the absurd way they were compiled. The summary judgment stage is often crucial in ADA disputes, and cases won by management at this stage were duly entered into the ABA database. And cases that went the other way? Well, um, it happened they were left out, except for the small minority of instances where the employer insisted on litigating to the end.

If the Associated Press or CNN had checked with some leading plaintiff's-side ADA authorities -- never mind the defense -- they might have gotten an earful about the defects of this study. Gary Phelan, co-author of a leading treatise on the ADA and a plaintiff's attorney who's handled more than 300 cases under the law, told the Connecticut Law Tribune that the ABA survey's exclusion of settled cases made it "not only misleading" but "flat out wrong." "Generally, around the country, ADA cases that have gone to trial have done very well," he told the paper. Peggy Mastroianni, ADA specialist at the EEOC, said the ABA report "overstates by far" employers' success at her agency.

Still, the ABA's efforts did divert attention from some other statistics less popular among disabled-rights advocates. Hardly anyone has been rude enough to mention, for example, that the rate of workforce participation among the disabled, which everyone expected would rise under the new law, has instead plunged to 29% from 33% in 1986. Also little-cited has been the report in the Dec. 24, 1997 Journal of the American Medical Association (JAMA) offering statistical support for the plausible notion that workers with sensory impairments get into more than their share of industrial accidents.

In both the new mitigation cases, employers are fighting back based on fears for traveler safety -- not because of some sort of dislike of handicapped persons.

The two sisters are suing because they've been turned down for jobs as pilots at United Air Lines. United declines to weaken its standard for pilots of 20/100 uncorrected vision or better, perhaps because it has considered the tendency of eyeglasses to smash or go flying in runway mishaps or conditions of extreme turbulence. Meanwhile, UPS declines to give the man with partially controlled hypertension a driving job because of the well-established correlation of that malady with traffic risks. (According to the Dallas Morning News, plaintiff Vaughn Murphy avoids taking the full dosage needed to keep his blood pressure down to normal because doing so makes him "stutter or forget things.")

The word, once again, is "unmitigated," as in "unmitigated disaster."

Mine and Thine

[Review of Richard Pipes, "Property and Freedom" (Knopf, 328 pages, $30). Originally appeared in the Wall Street Journal, May 6, 1999].

Wouldn't it be great if we could just do away with private ownership of property, sharing and sharing alike in nature's bounty? Generations of radical thinkers have been captivated by utopian flights of this sort. Meanwhile, their nonradical counterparts have often taken property rights for granted as a useful but uninspiring feature of the West, an accommodation to human frailty best left to the elucidation of economists and lawyers.

The spectacular collapse of communism, with its attempt to dispense with private ownership, has suggested to many that the whole concept of property might perhaps be something fundamental, worth a closer look. In "Property and Freedom" (Knopf, 328 pages, $30) Harvard historian Richard Pipes bids to restore the idea of property to its rightful place, "the key to the emergence of political and legal institutions that guarantee liberty."

Mr. Pipes has devoted his life's work to the study of Russia, a country where the concept of property has had peculiar difficulty establishing itself. He argues that "no single factor in Russia's history explains better the divergence of her political and economic evolution from that of the rest of Europe" than the failure to develop institutions of private property like those that arose in early modern England.

In Mr. Pipes' account of the long history of intellectuals' hostility to property, actual communists hold the stage for a relatively brief time, although as the most committed faction. Revolutionaries, syndicalists and romantic nationalists all get their turn, but the surprising villain turns out to be cultural anthropologists, who by the late 19th century had begun informing a rapt intelligentsia of their investigations into primitive tribes, which allegedly revealed those happy peoples to be untroubled by quarrels over who owned what.

This idea fit neatly with the widespread myth of a Golden Age of ancestor-heroes among whom mine and thine were unknown. Later and more careful work, however, has found such a propertyless view of primitive life about as realistic as the image of carefree natives swanning about without a stitch of clothing or any thought of modesty.

Concepts of property among tribal peoples, writes Mr. Pipes, are likeliest to attach to "whatever their livelihood depends on," such as water holes in an arid climate. Cultivation of the soil, which typically raises its value, goes along everywhere with a more precise definition of property rights. Yet even hunter-gatherers recognized rights in what we call "intellectual property" -- in songs, for example, or techniques of artisanship.

The fork in the road between Britain and Russia, it would seem, came on the issue of whether the ruler could be said to own everything in the country. In England, this idea was challenged and then rejected with the revolutionary consequence that the king had no more right to trespass on an Englishman's freehold than anyone else did. Nor (eventually) could he exact financial penalties from his subjects -- or do much of anything else, such as take away life and liberty -- without due process of law. The idea that rights were something prior to government soon made England the most property-oriented country on earth.

By contrast, in unhappy Russia, the czars' claim to own everything carried only too much weight. The members of the Russian nobility often found themselves acting as collectors-of-tribute on highly revocable allotments. Serfdom persisted because the obligations of nominal landowners to the crown were too onerous to be met any other way. Whole categories of economic endeavor, such as coach inns and flour mills, were decreed to be the property of the royal family. When Lenin sought to ensure submission to the authority of his Soviets by ordering the pulping of old title deeds, he was acting in the tradition of the worst czars.

Going beyond his case histories, Mr. Pipes points to many other connections between property and liberty, including the crucial role of mercantile towns in the late Middle Ages in developing modern ideas of representative government and the role of private fortunes in providing a seedbed for oppositional ideas.

Mr. Pipes packs a great deal of material into his book, at the cost of seeming to change subjects rather often; a tone also creeps in of irritable dismissiveness toward those who've gotten these matters wrong. (Fans of John Rawls and Erich Fromm will yelp.) Practical recommendations aren't his main point, but he does suggest that courts stop treating property rights as unloved stepcousins of "real" rights, and that foreign-affairs specialists not shy away from prescribing private ownership to those who would modernize their countries.

A man with an eye for a quote, Mr. Pipes invokes David Hume on redistribution: "Render men's possessions ever so equal, men's different degrees of art, care and industry will immediately break that equality. Or if you check those virtues, you reduce society to the most extreme indigence; and, instead of preventing want and beggary in a few, render it unavoidable to the whole community." On his own he comes up with a pithy philosophical reflection on the sweeping success of "privatization" around the world since 1980: "Aristotle has triumphed over Plato."

New Trends in Highway Robbery

[Review of Ken Dornstein, "Accidentally, On Purpose: The Making of a Personal Injury Underworld in America" (St. Martin's, 468 pp., $26.95). A slightly shorter version appeared in the Wall Street Journal, December 20, 1996].

Last year the FBI, with indictments in 31 states, launched a crackdown on a peculiarly American crime: organized car-crashing, now a multi-billion-dollar business. In "swoop-and-squats", a gang driver pulls in front of an unwary motorist and slams on the brakes. Claiming injury, he and his passengers set themselves up for a nice insurance settlement, then head out on the road for another "accident".

Sue Grafton ("H" Is for Homicide) and other novelists have tackled this gruesome subculture, and now Ken Dornstein fills the nonfiction gap with a remarkable new book, "Accidentally, On Purpose: The Making of a Personal Injury Underworld in America" (St. Martin's, 468 pp., $26.95). This first-time author pulls together more colorful history in one book than most authors manage in four, yet someone at St. Martin's should be spanked for failing to edit out the repetitions and digressions that make it only a great browse instead of a great read.

Mr. Dornstein signed up in 1991, when still a senior at Brown, to work the L.A. accident scene as a street investigator. A tireless rummager among the archives of railway claims journals, he lays out a vast forgotten history of fraudulent personal-injury claims, dating back to Civil War days, full of characters like New Jersey's "Banana Anna", whose 17 peel-related mishaps landed her in women's prison, and the Tumbling Womacks of St. Louis.

Such freelancers were bad enough; then came the organizers. "The key figure in the evolution of the urban accident racket in the first decades of this century," writes Mr. Dornstein, "was the 'ambulance chaser'" who connected lawyers to lucrative cases, often purchasing "leads" from cops, nurses, and reporters, and sometimes cultivating the help of disloyal insurance adjusters and even streetcar or delivery drivers who might be induced to crash their vehicles.

Investigations into resulting abuses provoked a huge public reaction from the late 1920s to the 1930s, culminating in waves of disbarments, medical-license revocations, and prosecutions, most notably by racketbuster Thomas Dewey. But times changed, and by the 1970s elite law opinion had grown ashamed of the old chaser probes: Why not let insurance defense attorneys sort out which claims were invalid? Prosecutors, bench, bar and medical authorities all snoozed off.

Abuses grew bolder. A supposed religious charity, the "Friends of the Friendless", gave chasers the run of the giant Los Angeles County Medical Center; techniques included pressing an unconscious patient's inked thumb to a legal retainer and threatening those who said no with deportation. "I get as much as I give," a hospital newsletter quoted one Friend as saying about his visits: "both the patients and I are rewarded." In Illinois, runners took over the Community Hospital of Evanston, dispensing with doctors' supervision and discouraging "real" nurses from applying. ("You're going to be so bored here. There is nothing to do.") The driver of the courtesy van whisking clients from law offices told why he liked the job: "No one is really hurt" so "no one gets sick on me".

True-crime books usually aim to show how the dirty deed is done, and this one does not disappoint:

How do I get started? For a "paper" accident, try inflicting "controlled damage" on a couple of cars with a sledgehammer in a dark parking lot. Insert passengers. Summon a witness. Gather broken glass in bags for re-use.

That was easy, what next? "Staged" accidents: Buy rustbuckets, insure one and run it into another one full of recruited claimants-to-be ("cows"). If you're nice, give them pillows.

I need symptoms! "OK, you can take tingles, and you can take hips or your shoulder," said one coach to his aspiring victims. "But don't go saying the exact same things." And be glad you aren't being sent to one of the House of Pain operations that massage would-be claimants with sandpaper and jagged can lids or flog them with apple-filled sacks. Let alone "Nub City", the Florida town that, in the 1970s, could boast that something like 10% of its population had practiced self-amputation for insurance, typically popping a left hand with a hunting rifle.

Who to target for swoop-and-squats? Big trucks on freeways are most lucrative, but many prefer forcing collisions with affluent drivers of newish cars, especially women because of "their reluctance to dispute liability".

How do I keep from getting caught? Vary your fact patterns. Don't stamp a doctor's name on medical reports months after he's died. Don't lose your ledger -- needed to keep hundreds of accidents straight -- or your scripts and tip sheets.

Mr. Dornstein is kind enough to present -- at length, and even with some sympathy -- the response of the trial lawyers to all this fraud. Not surprisingly, they see the publicity given to such cases as an industry-orchestrated plot against them, "intended to destroy a branch of the law which has always been concerned with fair and compensatory damages," as one said. So this truly is a book with something for everybody. But not before meals.

January 2, 2006

Taking Aim at the Trial of the Century

[Review of Vincent Bugliosi, Outrage, and H. Richard Uviller, Virtual Justice. Originally appeared in the Wall Street Journal, July 24, 1996]

"O.J.'s going to kill me someday," Nicole Brown Simpson told friends, "and he's going to get by with it." Vincent Bugliosi tells how he did in "Outrage" (Norton, 356 pages, $25). The former Los Angeles district attorney (and true-crime author of "Helter Skelter") has a field day skewering virtually everyone involved in the Simpson case. But his main brief is to expose the many errors of the prosecution.

Confident its blood-ID and other proofs would suffice to nail the former football star, prosecutors withheld from the jury a stack of evidence concerning his doings after the murders: his equivocal statement to police, his abortive suicide note and the story of the Bronco chase, where he set off accompanied by an old friend, $8,750 in cash, a passport, a gun and a false goatee and mustache. The receipt for the disguise turned up in the Bronco too. It came from Cinema Secrets Beauty Supply in Burbank and was dated May 27, 1994, about two weeks before the murders -- a bit of damning Simpsoniana readers may encounter in this book for the first time.

Apparently the district attorneys feared the maudlin suicide note might rouse sympathy, while the police statement might let Mr. Simpson have his say without taking the stand. But along with predictable denials of the murders, both documents were full of highly incriminating admissions on such matters as how and when he sliced his hand and bled all over his car. "Give me a yellow pad and one hundred hours and I would have convicted Simpson on [the police] statement alone," brags Mr. Bugliosi. Instead the state squandered weeks on coroner's testimony that led nowhere.

The state's soft sell sometimes bordered on apology. "You may not like me for bringing this case," Marcia Clark told jury prospects. Chris Darden in final argument: "Nobody wants to do anything to this man....There is nothing personal about this, but the law is the law." But jurors needed to hear it would not be understandable for them to vote either way, that letting this man off would haunt them forever.

A trial lawyer, Mr. Bugliosi tells us, "has to put a bib on the jury and spoon-feed it." But Ms. Clark spent less than a page of her final statement waving off the defense's charge of a vast police conspiracy, rather than hammer away at how many officers would have had to join the plot, how unlikely the motivations and coincidences would have had to be, how high the chance of detection -- in short, how desperate, fantastic and slanderous the whole frame-up theory was.

Also entering the book's reputation-grinder head first is L.A. District Attorney Gil Garcetti, who keeps switching stories on why he chose to try the case downtown rather than in Santa Monica, with its far more pro-prosecution jury pool. The misnamed "Dream Team" defense, supposedly the "best that money can buy"? No such thing: It lacked murder-trial experience and failed to interview key witnesses. The jury? "Not a normal jury. If it was, we should start packing our bags for Madagascar." Johnnie Cochran? "As two-faced as a tower clock". As for flaying Judge Lance Ito, Mr. Bugliosi takes his number and gets in line.

The New York Times recently called Mr. Bugliosi a blowhard, and his often coarse and boastful tone does grate. "The prosecutors were far too civilized for the defense attorneys," he writes. "That would not have happened if I had been in that courtroom." We believe him. But clarity and powerful marshaling of argument still vault this book to the top of the Simpson stack. And he never forgets why we should care. "This book is for people who are very angry that a brutal murderer is among us -- with a smile on his face, no less -- and want to know how this terrible miscarriage of justice could have occurred."

As for what to do, he starts promisingly -- abolish peremptory challenges, kick the cameras out of the courtroom -- then turns and begins defending most current practice, rather as if Upton Sinclair had ended "The Jungle" by assuring readers that it was after all OK to tuck into a nice plate of Chicago sausage.

Readers looking for subtlety will find plenty in H. Richard Uviller's "Virtual Justice: The Flawed Prosecution of Crime in America" (Yale University Press, 318 pages, $30.) Avoiding the Simpson case, the Columbia law professor and former prosecutor steers mostly a mainstream academic line, admitting to ambivalence over the exclusionary rule (perhaps fixable by techno-measures like letting judges issue search warrants by walkie-talkie) but dismissing the view that criminals get off easily as mere "myth".

After various thoughtful observations, Mr. Uviller drops a little bomb: Troubled by the way our lawyer-driven criminal process leaves so much to chance and adversary skill, he is increasingly attracted to the judge-directed method of inquiry used in most European countries. "In an unfortunate word with overtones of ancient abuses, we call this model inquisitorial." It certainly made this reader start turning the pages with fresh interest, but then the book ended.

November 5, 2005

Tobacco Analysts Meet the Plaintiff's Lawyers

[originally published in the Wall Street Journal, August 30, 1995]

Call them the Wall Street Five. Tobacco analysts Marc Cohen of Goldman Sachs, Gary Black of Sanford C. Bernstein, Diana Temple of Salomon Brothers, Roy Burry of Oppenheimer & Co., and Rebecca Barfield of CS First Boston are the latest to discover that when you rain on the parade of the litigation lobby, you'd better pack a legal umbrella of your own.

Reporters rely on all five for what are often the only skeptical comments from outside the tobacco business to balance the opinions of plaintiff's lawyers and anti-smoking activists. This spring Mr. Black predicted that a federal appeals court will torpedo Castano, the much-hyped class action, by vacating an order sweeping tens of millions of smokers into a single class. In June, Mr. Cohen saw "nothing new" in reports of years-old nicotine research that the lawyers were waving about. Ms. Temple and Mr. Burry have told the press they think jurors are tiring of the argument that smokers can't be held responsible for their choices after 25 years of warning labels.

The five must have known such comments wouldn't endear them to the consortium of 40 law firms spearheading the Castano suit. Still, they were apparently unprepared for the subpoena that landed on their desks dated June 28. It came from the Castano lawyers and demanded pretty much everything related to tobacco in their offices save the contents of the ashtrays. Among the demands were for all correspondence they or their firms had received from tobacco companies since April 1 of last year, and all documents from whatever source shedding light on nicotine and the nicotine habit.

That was just for starters. Here's the full text of the profoundly burdensome Request No. 2: "Please produce for inspection and copying each and every document relied upon or reviewed by you, persons employed by you or members of your organization, in the formulation of your opinions with respect to the purchase of stock in any entity listed above. Please list the source of and date of receipt for each document produced in response to this Request."

Most professionals who give opinions for a living have "relied upon or reviewed" an indefinitely high number of documents, many long since discarded, that fill out the overall picture. In this case, an opinion on whether the market is underpricing Philip Morris or RJR Nabisco may derive in part from a gauging of the general cultural climate surrounding tobacco ("Documents 781-863: 'Doonesbury' cartoons tweaking cigarette makers. Source: Daily Bugle. Dates: see attachment.")

Request No. 6 seeks the customer correspondence of the five investment firms -- specifically, "each and every document" that each firm supplied to "persons or other businesses expressing an interest in purchasing shares or making an investment in" any tobacco company -- with names of recipients and dates, of course.

What justification is being offered for this massive invasion of the Wall Street Five's professional privacy -- an invasion that, aside from menacing the confidentiality of their employers' dealings with thousands of individual investors around the country, could inflict millions of dollars of response costs in file searches and lawyers' time? The Castano lawyers haven't proffered any charges of actionable wrongdoing against the Five, and it's hard to imagine how even the most creative lawyer could graft such charges legitimately onto the current suit. Instead they're putting the analysts through the mill as third-party witnesses: their files no doubt contain many documents relevant to Castano's issues, and tobacco executives who've spoken to them over the past year and a half might have made admissions or claims unrecorded elsewhere but preserved in their notes.

Even by the absurdly liberal standards by which American courts now permit pre-trial "discovery", this is a stretch. An oft-heard principle is that burdensome discovery should not be demanded from third parties if the same data could be sought from one's opponent directly, which would seem to apply to much of what is being sought here. Nor is there an established right to cash in on third parties' research skills by forcing them to point out publicly available scientific papers and the like that one's own team might have overlooked. As for the argument that we're entitled to your files because you've been talking to someone we're suing, it's only too easy to see the potential for abuse in harassing third parties who keep up contact with the targets of litigation.

John Coale, spokeslawyer for the Castano suit, seems remarkably unconcerned that the subpoena might be viewed as a way of intimidating the analysts and curtailing their influence on informed opinion. "We're pulling them into the game", he said. "We think the analysts favor the tobacco companies and are consistently trumpeting the industry's position."

If the Wall Street Five want some sympathy, they could talk to researchers who have looked skeptically at the breast-implant scare. Dr. Marcia Angell, executive editor of the New England Journal of Medicine, published an article and editorial rebutting it and has been digging her way out ever since from under subpoenas and document demands filed by incensed plaintiff's lawyers.

Dr. Sherine Gabriel, the Mayo Clinic investigator who wrote the New England Journal study, told the Times that the discovery onslaught "has severely compromised my ability to do research" and has also scared other scientists away from the field, who've told her in so many words that they won't risk being subjected to a similar ordeal.

A standard tactic is to demand confidential patient data. On July 27 Alabama federal judge Sam Pointer refused to quash a massive subpoena seeking patient files from the implant-exonerating Harvard Nurses study. A panel of the American College of Rheumatology found that "rheumatologists who have expressed opinions or published work viewed as contrary to the interests of plaintiffs and plaintiffs' attorneys in implant-related litigation have been subjected to various forms of harassment in the work place or even at their homes. Much of this has been attributed to plaintiffs' attorneys."

Despite a growing outcry, nothing is being done to halt these tactics. Sanctions against litigation abuse have fallen from favor in the federal courts since the previous Congress quietly gutted the main sanctions provision. And although a bill to revive them has passed the new House it's stalled in the Senate along with so many other legal reforms. Even the House Republicans have yet to propose the sort of systematic rollback of litigators' discovery powers that would bring our practice into line with what other countries allow, and help protect the privacy of personal diaries and memos, deleted e-mail and telephone logs. The need for such a rollback grows clearer every day.

November 4, 2005

California Counts the Costs of Lawsuit Mania

[originally published in the Wall Street Journal, June 3, 1992]

Baseball-and-Olympics hero Peter Ueberroth has just pitched a fast one past California's legal sluggers. Those who expected a bland exercise in blue-ribbonism when Gov. Pete Wilson named Mr. Ueberroth to head a bipartisan business/labor group were disabused when the Council on California Competitiveness issued its report April 23.

"Our conclusion is that we are suing ourselves to death," Ueberroth told the San Diego Union-Tribune. "[W]e are legally the most expensive state of the fifty. We add huge costs to our products and we don't add value. That makes us noncompetitive and so we call for tort reform."

Mr. Ueberroth singled out workers' compensation, where avid lawyering and outright fraud have driven a huge wedge between what California businesses must pay and what their workers can expect to receive if seriously hurt on the job. The state is somewhere around "the third to the fifth most expensive in workers' comp in the nation. We are 44th in benefits. What the hell is going on?"

One thing going on is stress claims, available to disgruntled workers from Napa to Needles who suffer psychic trauma when, say, the boss fails to come across with a juicy raise or promotion. Lawyers push stress claims in their ads ("Headaches, stomachaches, or poor sleep?....Sue for money and benefits!") while law-firm "runners" collar prospects as they step into unemployment offices. 1990 payouts in what might be called the Cal-Stress program ran at $450 million a year -- the equivalent in insured losses of an L.A. riot every 15 months.

An appendix in the council's report offers some glimpses of the beleaguered businesspeople behind the numbers. High comp costs are driving California natives Linda and Harry Prod out of the coffee shop business. "We have one restaurant in Monterey Park which maybe we will keep, but otherwise we will not be in California again. We are aware the recession is not just here, but to add insult to injury, California is so against business."

The Prods are lucky compared with Roger and Stephanie Valek of Escondido, who built up an auto body shop over 20 years. More than a decade ago, the council says, they paid an approved disposal company to take about 15 barrels' worth of thinner to a barrel yard in L.A. Liability buffs can guess what came next: the state declared the yard site hazardous, the disposal company went broke, and as next of legal kin the Valeks have been ordered to pay $7.9 million.

To hear the American Bar Association (ABA) tell it, the Prods and the Valeks and everyone like them may be purely imaginary. The venerable bar group, which lately resembles a trade union for people who sue people, keeps churning out tracts pooh-poohing the idea that litigation burdens the economy.

The ABA press office, for example, is at pains to deny that lawyers are too numerous in this country.* The real problem, its handout explains, is that "other countries with large populations have too few". Glad that's settled.

Then there's the great hoo-ha about the estimated costs of tort law. Some legal critics have cited a ballpark figure of $100 billion in direct costs, and much more when indirect effects (behavior changes to duck liability) are counted. Terribly inaccurate, says the ABA: A better estimate would be $29 to $36 billion. The Association of Trial Lawyers of America (ATLA) offers the same number, as does lawyer Joan Claybrook of the Naderite group Public Citizen.

ABA-'n'-ATLA must be kidding. Start with cars. There are 120 million private cars on the road, most insured, and the liability component of those policies runs to $350 or so a year per car. That's at least $35 billion out of consumer wallets right there. Add in trucks and vans and you're over $40 billion, not to mention trains and planes. To that, add estimates for medical malpractice insurance and self-insurance, which start at $10 billion and go up.

We're now well past $50 billion and haven't even counted workers' comp, which the Ueberroth report says eats up $1.5 billion in litigation costs -- not pay-outs, just process costs -- in California alone. Or product liability, environmental suits like the Valeks', litigation against town hall, premises liability or a hundred other profitable legal specialties.

The $100 billion lower boundary for the cost of American injury law comes from a consulting firm named Tillinghast (it's since risen to $117 billion). What the ABA-cadabrists don't say is that the Rand Corporation's Jim Kakalik, who originated the $29 billion-to-$36-billion estimate, says he sees no contradiction between the two studies; they were simply trying to measure different things, that's all.

The latest effort along these lines, in the April ABA Journal, was, if nothing else, ill-timed. It dismissed as "fundamentally false" the idea that lawsuits are inhibiting research and innovation, but arrived on desks within days of a truly grim article in the April 10 Science drawing the opposite conclusion.

A "careful examination" of the state of AIDS-vaccine research, Science said, "shows that liability concerns have had negative effects". Depressing specifics follow: Bristol-Myers Squibb dropped one promising approach, Immune Response Corp. has had to delay human trials because its partners fear being sued, and so forth. After the California Trial Lawyer Association gutted tort reform in Sacramento, Genentech suspended its AIDS vaccine research for a couple of years, then resumed after a favorable court ruling.

What rattles vaccine makers is the prospect of getting sued not just for genuine side effects, but for imaginary ones as well. If a thousand unborn children of drug-abusing mothers are given shots to protect them from HIV, a certain number will be born with brain damage no matter how innocuous the serum. And every one is a potential big-ticket lawsuit.

It's happened before. "Whooping Cough Vaccine Found Not to Be Linked to Brain Damage," the New York Times reported in 1990, but by that point trial lawyers had reaped fortunes saying it was. With huge defense costs, no loser-pays rule in American courts, and a given random factor in jury outcomes (even trial lawyers must doubt their jury-infallibility theory after recent California events), bringing false but plausible-sounding speculations to court can pay good money.

"Is tort reform possible so long as certain lawyer groups exert so much influence over the Legislature?" the San Diego Union-Tribune asked Peter Ueberroth. His reply: "Anything is possible in this country if enough people care about it."
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*According to the Ueberroth report, the United States has 281 lawyers per 100,000 population, Germany 111, Britain 82, and Japan 11.