Delegating Democracy: Government by Litigation Has Become Increasingly Popular. It's Bad for Both Politics and the Law

Article excerpt

One of the big stories of the past decade is how the lawyers have taken over government. By this I am not referring to lawyers' winning elections--something that dates to the republic's earliest days. What has happened is that lawyers, acting on their own and deploying various legal devices, are increasingly trying to set government policies by themselves. Litigation substitutes for political debate and legislative struggle. It's not a healthy development.

You can glimpse this phenomenon on many fronts. There's Microsoft. The Justice Department's antitrust suit amounts to "industrial policy"--an avowed attempt to intensify competition and innovation in an industry where they're already plentiful, with unpredictable consequences. If you believe the White House, the suit was filed without any review by administration economic officials. Could the policy have passed a broader inspection?

Then there was Ken Starr's unending investigation of Clinton. You do not have to be a Clinton enthusiast (I am not) to think that the process got thoroughly out of hand. It did so because the special-counsel law barely limited Starr's power. The result was an ill-disguised campaign to overturn the 1996 election. Starr argues plausibly that he simply did what the law required. What seems equally plausible is that someone else might have read the law differently.

Finally, recall the tobacco settlement. It effectively imposed a huge cigarette tax on the almost 25 percent of Americans who smoke, with the proceeds going to states and the trial lawyers who sued on the states' behalf. Congress, of course, did not approve this tax or the massive transfer to a small number of--perhaps a few thousand--lawyers. At last count the lawyers had been awarded about $11 billion in fees. (Although the tobacco industry pays the fees, the costs are mostly passed along in higher cigarette prices.)

What connects these apparently unrelated episodes--all huge news events--is the similarity of the process. In each case some contentious economic, social or political matter was transformed into an ostensibly "legal" issue. This enabled lawyers, following their own beliefs or interests, to drive and shape events. The process continues, most prominently in suits against the gun and health-care industries, and we can expect much more of the same.

Lawyers--like other people--have been known to be ambitious, greedy and power-hungry. Some will always seize opportunities to expand their wealth or influence, unless stopped. But resistance is waning. Indeed, social activists and some political leaders increasingly prefer legal to legislative action. The legal route promises a definitive outcome, while legislation may go nowhere or involve messy conflicts. Money awards from lawsuits--if partially channeled to governments--can substitute for tax increases. In defending huge tobacco fees for lawyer Peter Angelos, Maryland Gov. Parris Glendening said: "Give me three more Peter Angeloses, and we don't have to worry about the budget."

What insulates the process from critical scrutiny is public respectability. Of course, there are periodic outbursts against overzealous lawyers, silly lawsuits and outrageous fees. …