Academic journal article Texas Review of Law & Politics

Did the Right Make America a Lawsuit Nation?

Academic journal article Texas Review of Law & Politics

Did the Right Make America a Lawsuit Nation?

Article excerpt

DID THE RIGHT MAKE AMERICA A LAWSUIT NATION? See YOU IN COURT. Thomas Geoghegan. New York: The New Press, 2007. Pp. 246. $24.95.

I. INTRODUCTION

Many books and writers have documented the problems caused by the tremendous expansion of liability in the last half century.2 In response, several writers on the political left have written defenses of unfettered liability or indictments of the tort reform movement2 sometimes even rationalizing such infamous outliers as the McDonald's coffee case3 as legitimate uses of the tort system.4

The latest arrival in this genre comes from much-celebrated5 labor lawyer and author Thomas Geoghegan: see You in Court: How the Right Made America a Lawsuit Nation.6 Unlike many on his political side of the aisle, Geoghegan acknowledges that the litigation explosion has harmed America, but blames it on right-wing policies. Deregulation, deunionization, and the right's putative dismantling of the legal system and Rule of Law, Geoghegan argues, have driven Americans to the courts by cutting off alternative routes to social justice. Geoghegan effectively demonstrates that the left should view skeptically the claims of the litigation lobby, a skepticism sadly disappearing from the political discourse as the Democratic Party more and more reflexively adopts the positions of trial-lawyer benefactors at the expense of its other constituents.7 But Geoghegan's attempt to blame conservatives for the increased role of litigation in society suffers from non sequiturs, self-contradictory arguments, and a general failure to engage his opponents' arguments fairly.

Section I of this review examines Geoghegan's thesis. It finds that Geoghegan defines and applies his core values-the Rule of Law; valuing democracy over decision-making by elites; recognizing the value of contracts-inconsistently and without providingany framework for determining when these principles should yield to other concerns. It further finds that Geoghegan provides no evidence for his claim that deunionization and deregulation caused the problems he describes in the legal system.

Section II describes and analyzes Geoghegan's most costly economic and factual errors. Many of his arguments are based on false premises or faulty economic reasoning. In particular, Geoghegan's lengthy indictment of the Federalist Society is central to his attack on the right but is riddled with mistakes and unfair rhetoric.

Section III explores Geoghegan's more thoughtful critique of the role of litigation in American society. Though Geoghegan makes some inconsistent claims on this subject as well, he effectively critiques the left's support of litigation as a means of achieving social change.

II. EASILY DISCARDED PRINCIPLES

Geoghegan prefaces the book with the tale of a Red Mass in Chicago (marred by the inclusion of his describing with glee the sight of "Scalia on his knees" at the Washington Red Mass) during which a bishop warned that the Rule of Law was dangerously in retreat in the United States. Geoghegan, too, speaks out in favor of the principle of the Rule of Law and of the need for the law to reflect the consent of the governed. These are fundamentally conservative principles: the Rule of Law principle is enshrined in the charter of Geoghegan's bugaboo, the Federalist Society; ' much of the argument for originalism rests on the principle of democratic consent to the governing constitution of the country.10 But Geoghegan does not seem to mean what other writers do when they refer to these principles: he espouses positions that clearly violate them, but he fails to either develop a framework to explain when or why the Rule of Law or democratic consent should yield to other values or to redefine these previously well-defined principles in a way that harmonizes his apparent inconsistencies.

Thus, even when Geoghegan is right, it is for the wrong reasons. He complains that "more and more, people experience the law as arbitrary" and "unpredictable,"11 a frequent complaint of conservatives and reformers. …

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