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

By Carl T. Bogus | Go to book overview

5
The American Common Law
System

Is Proctor an Example of System Failure?

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

Yet, bearing this in mind, certain insights can be gleaned from a single example. This section returns to the case of Proctor v. Davis. As the reader will recall, this book opened with Senator John C. Danforth offering that case (albeit a rather distorted description of it) as an example of the failure of the products liability system. Danforth's object was to show that the system wallops defendants, especially corporations, with insanely large verdicts. He was trying to persuade the Senate that the tort system was producing jury verdicts that are both enormous and lacking in all rhyme and reason, and that the cumulative cost of these verdicts, together with litigation expenses companies are forced to spend to defend themselves from a plethora of lawsuits, is imposing a heavy financial burden on American business. This is an indictment with two counts. First, the system is irrational and produces injustices for parties who have the misfortune of being dragooned into litigation. Second, the system imposes heavy costs on business, resulting in higher prices for consumers, chilling the development of new products, and putting American firms at a competitive disadvantage in the global marketplace.

-102-

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Why Lawsuits Are Good for America: Disciplined Democracy, Big Business, and the Common Law
Table of contents

Table of contents

  • Title Page v
  • Contents ix
  • Acknowledgments xi
  • Introduction 1
  • 1: Why Tell Tales? 6
  • 2: War on the Common Law 22
  • 3: The Third Branch of Government 42
  • 4: Disciplined Democracy and the American Jury 66
  • 5: The American Common Law System 102
  • 6: Who Regulates Auto Safety? 138
  • 7: The Three Revolutions in Products Liability 173
  • 8: The Common Law and the Future 197
  • Notes 221
  • Index 259
  • About the Author 265
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