Read This or I'll Sue You
By Jonathan Rauch
National Journal, Feb. 6, 1999
"Granddad, our social studies teacher says that court suits used to be called 'lawsuits,' because in those days they were actually about law.''
Yes, but that was a long time ago.
``He said it used to be that judges and sometimes even lawyers discouraged you from suing people just because you hated them or wanted their money. We thought he was joking.''
Well, things changed.
Once upon a time there was a President who believed that lawsuits were good for the country. Anyway, he acted that way. He even signed a law in 1994, long before you were born, inviting plaintiffs in sexual harassment cases to poke around in defendants' sex lives. And then, wouldn't you know, somebody sued him for sexual harassment. She suffered no demonstrable harm and her backers were blatantly political and the judge dismissed her case as meritless, but she still got $850,000.
You might have thought this would teach a fellow something about the injustice of using lawsuits as weapons of political terror or as crowbars to break into people's bank accounts. But this particular President was not as wise as he was smart. And so, on the very day when his lawyers were defending him from impeachment in the aftermath of the suit against him, he stood at the lectern of the House of Representatives on State of the Union night and grinned from ear to ear as he proclaimed: ``Tonight, I announce that the Justice Department is preparing a litigation plan to take the tobacco companies to court and, with the funds we recover, to strengthen Medicare.''
Now, ``recover'' was an interesting word to use, because the federal government in those days glommed a net of about $40 billion a year from smokers, both from cigarette taxes and from old-age benefits that smokers paid for but did not live to collect. If the President had been honest with words, he would have said ``take,'' not ``recover.'' But this particular President wasn't known for his honesty with words.
``But weren't the people upset?''
Oh, no. The people hated tobacco companies and loved money, so they clapped and clapped. In fact, what was really important about 1999 was that everybody had become completely frank about what was going on. No one bothered to pretend there was any established legal theory to justify going after tobacco. With astonishing bluntness, The Washington Post said: ``If the threat of a federal lawsuit . . . inspired a settlement, so much the better.'' The Post--which in those days was a respectable newspaper--was positively smug about using the legal process as a political bludgeon: ``A good political settlement might be a better outcome for both sides than a lawsuit. The `litigation plan' could in that sense become a bargaining chip.'' See? Political settlement . . . lawsuit . . . what's the difference?
In olden times, people didn't talk that way. Stickling judges and ancient rules pinned lawsuits within narrow bounds. The law required a close and clear connection between one party's failure to do its job properly and another party's real-world harm. If a company made ice cream that clogged your arteries, you couldn't sue, because part of the blame rested with you for eating the ice cream. As for holding an ice cream company liable to the government because your eating ice cream raised Medicare costs--well, that was comedy, not law.
Starting in the 1960s, however, everyone--Congress, courts, federal agencies, activists, lawyers--began loosening the old restraints. ``Negligence'' came to mean failing to prevent any avoidable harm to other people, even people who were _trying_ to get hurt. Pretty quickly, it got to the point where almost anybody could sue almost anybody for almost anything.
Even then, for a while people still felt obliged to pay lip service to the admittedly quaint notion that a lawsuit was about law, not politics or profit. But finally the last fraying threads of gentility gave way. People began to realize that the point of the legal process is to make bad people suffer and good people rich.
And so while the President got busy suing the unpopular tobacco companies for money that they did not properly owe, lots of cities got busy suing the unpopular gun companies for money that they also did not properly owe. For venture capital, the cities turned to lawyers, who were rich from cigarette suits. Once again, the plaintiffs were remarkably brazen. They freely admitted that this was about winning, not about law. Mark Morial, the mayor of New Orleans, put it this way: ``The gun industry is a powerful special interest with a lot of money, and they've proved to be very politically influential and very elusive, both in the Congress and in the state legislatures. The courts in America are a place where the playing field can be much more level.''
So the cities set out to shop around and try lots of different claims until they found one that some jury would buy, and then with that club they could force the gun makers to buy them off and to accept various regulations that the legislatures had refused to approve. New Orleans tried a product-liability claim. Chicago tried a public-nuisance claim. More than a dozen other cities announced their plans to join in the fun.
They were like a bunch of bandits lurking on the highways, but using lawsuits instead of revolvers. In fact, I called it the New Banditry in a pathbreaking article back in '99. (See NJ, 2/6/99, p. 316)
`` `The New Banditry'! A coinage of genius, a seminal rubric!''
Right you are, laddie, and the Pulitzer and Nobel committees thought so, too.
``But why wasn't there an outcry?''
Oh, at first there was, but soon political lawsuits became common. The tobacco companies and their allies adopted the enemy's tactics. They sued one of their most effective critics, a professor, for using state money (his salary, for instance) to do ``political research.'' A conservative activist-lawyer in Washington took to suing the White House for a living. By 1998, he had sued the Administration at least 18 times. He used depositions to ask if an Administration official had called him a ``twerp.''
Now, there is corruption and corruption. You can beat ordinary corruption--bribery, for example--by fighting it with law. But what do you do when law itself is twisted to political ends? How can you fight back when powerful people begin using for predation the very legal devices intended to protect against predation? In 1997, a Maryland judge dismissed the state's lawsuit against Big Tobacco, pointing out that the government had no legal claim against the industry. Eight hours before its midnight adjournment in April 1998, with the scent of $3 billion in its nostrils, the state legislature rewrote the law--retroactively.
This kind of corruption feeds on itself. Once the law becomes a weapon of predation, then the only protection is retaliation. A lot of the people who financed the sexual harassment lawsuit against the President were just the sort of conservatives who, in the past, had complained about liberals' abuse of the courts. One day on a long airplane flight, I got tired of reading the emergency instructions and picked up National Review, and there I found an article by a conservative writer named Peter Schweizer about a lawsuit against the filmmaker Oliver Stone and everyone else associated with making or distributing the film "Natural Born Killers." It seemed the plaintiffs' daughter was murdered by two teenagers who were enraptured of Stone's violent movie, and the filmmakers ``knew or should have known'' the movie would ``cause and inspire people to commit crimes.''
I wasn't surprised, of course, by the lawsuit's wild reach, which was really a backdoor ban on cinematic violence. And I nodded happily when Schweizer wrote that Stone ``made a gruesome and immoral film, for which he deserves public obloquy, but not legal liability.'' But I was brought up short by the conservative writer's further conclusion: ``It is some consolation that the same legal system that makes cigarette and gun manufacturers tremble has temporarily struck a little fear in the heart of Oliver Stone.''
This, you know, is how rot spreads. Bad habits drive out good ones. A few people sue for profit or political gain, and win. Their enemies can only squeal indignantly for so long before they follow suit, excuse the expression. Then finally the government itself gets into the act. The President showcases a political lawsuit before the assembled dignitaries of Congress and the Supreme Court, and the process of legitimation is complete. Corruption is total when people cease to notice it. That is what happened in 1999.
``Wow. But, Granddad, if you're so smart, how come you're in the fish-bait business?''
Remember that famous article? Well, some lawyers noticed that reading alarmist commentaries drove up people's blood pressure, raising Medicare costs . . .
Full archive of Jonathan Rauch's National Journal columns (at Reason magazine)
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