The Texas Review of Law & Politics has published my review of Thomas Geoghegan’s book. I differ from the favorable reviews of Adam Liptak and others:
Many books and writers have documented the problems caused by the tremendous expansion of liability in the last half century. In response, several writers on the political left have written defenses of unfettered liability or indictments of the tort reform movement, sometimes even rationalizing such infamous outliers as the McDonald’s coffee case as legitimate uses of the tort system.
The latest arrival in this genre comes from much-celebrated labor lawyer and author Thomas Geoghegan: See You in Court: How the Right Made America a Lawsuit Nation. 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. 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.
Thanks to those at Overlawyered who commented on an earlier draft and helped make the paper better by reminding me that political contributions were a revealed preference.
2 Comments
You know, it doesn’t seem all that relevant whether Geoghegan wants to blame the right. It is much more important in the grand scheme of things that he is telling his compatriots on the left that jackpot litigation that mostly enriches trial lawyers is unsustainable as social policy. This is like telling the Democrats they ought to sever ties with Big Labor. The moneymen will say it’s simply impossible; the Democratic party can’t get out of bed in the morning without a regular dose of trial lawyer money. Tort reform is bitter medicine that they probably won’t take, but at least now someone with the correct political pedigree has validated the concern for liberal policy wonks and reporters who have been afraid to voice such views or haven’t given them much thought.
It comes up especially with respect to a couple of industries on which liberals are very focused right now: Health care and auto manufacturing. Lawsuits are huge cost drivers that will impede what Dem policymakers hope to accomplish during Obama’s term. They can’t pretend those costs are irrelevant.
As for Geoghegan’s finger-pointing — oh hell, why not admit it? He’s got a point. Tort law is, in effect, the privatization of regulation. Between the two, regulation is far more preferable to business if it is conducted predictably, fairly, and judiciously. Tort law is irrational and disproportionate in its effects, and hard to undo, whereas unworkable regulation can always be changed by legislative efforts.
In short, despite your disagreements with Geoghegan, you owe him big time. He’s joined your fight. Welcome him aboard.
[…] His most recent book See You in Court: How the Right Made America a Lawsuit Nation (2007, New Press, and out in paperback this month) showed independence of mind and a willingness to rethink received ideas, as usual, but disappointed in other respects. For one thing, Geoghegan seemed more interested in blowing off steam against conservatives and litigation reformers than in trying to understand what they actually think about the issues he raised. The result was that some of his shots fell very wide of the mark, while he missed other points that might have advanced his case. Ted wrote a much more extended critique of the book that is linked here. […]