Distorting the Law

Politics, Media, and the Litigation Crisis

William Haltom, Michael McCann

• Publisher: University of Chicago Press
• Year: 2009
• ISBN:
  9780226314693
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politik

In recent years, stories of reckless lawyers and greedy citizens have given the legal system, and victims in general, a bad name. Many Americans have come to believe that we live in the land of the litigious, where frivolous lawsuits and absurdly high settlements reign.Scholars have argued for years that this common view of the depraved ruin of our civil legal system is a myth, but their research and statistics rarely make the news. William Haltom and Michael McCann here persuasively show how popularized distorted understandings of tort litigation (or tort tales) have been perpetuated by the mass media and reform proponents. Distorting the Law lays bare how media coverage has sensationalized lawsuits and sympathetically portrayed corporate interests, supporting big business and reinforcing negative stereotypes of law practices.Based on extensive interviews, nearly two decades of newspaper coverage, and in-depth studies of the McDonald's coffee case and tobacco litigation, Distorting the Law offers a compelling analysis of the presumed litigation crisis, the campaign for tort law reform, and the crucial role the media play in this process.

PART ONE

Contesting Legal Realities

CHAPTER TWO

Pop Torts: Tales of Legal Degeneration and Moral Regeneration

When his electric power mower gets clogged with wet grass, a man turns it over and, without turning it off, reaches into the blade area and begins removing the clotted grass. He loses several fingers, sues the manufacturer . . . and wins. . . . Today the object is to collect—from someone. . . . There is usually someone else around with a “deep pocket” to pay. This entitlement mentality has a terrible, corrosive effect on American society. . . . It’s time to restore the principles of self-reliance and personal responsibility to our civil justice system, and there are some practical reforms that will do this.

NEWSPAPER ADVERTISEMENT FOR AETNA LIFE AND CASUALTY

American life is increasingly characterized by plaintive insistence, I am a victim.... The mantra of victims is the same: I am not responsible; it’s not my fault.... In the law, the proliferation of causes of action has created a society whose leitmotif is the cry “Don’t Blame Me!” . . . A substantial reform of tort liability could begin to roll back the tide of briefs, injunctions, and writs that has flooded the culture of victimization. . . . It’s time to drop the crutch.

CHARLES J. SYKES, A NATION OF VICTIMS

Litigation and its threat have begun to metastasize to virtually every sector of the economy. . . . Some boast that America is the most advanced of all nations in developing rights of redress. But in fact we are among the most backward, because our legal system does not redress the ills it inflicts itself.

WALTER K. OLSON, THE LITIGATION EXPLOSION

[L]aw cannot save us from ourselves. . . . Let judgment and conviction be important again. . . . Relying on ourselves is not, after all, a new ideology. It’s just common sense.

PHILIP K. HOWARD, THE DEATH OF COMMON SENSE

We begin our review of instrumental politics with the campaigns of those activists who have widely publicized narratives about the litigation explosion to advance the cause of tort reform. Intellectuals, policy elites, politicians, and interest group partisans have advocated reforms of civil justice for decades, but the publicizers and popularizers on whom this chapter focuses have extended such advocacy among broader audiences to secure greater visibility for selected visions and versions of legal change. While the evidence supporting the broad charges of “pop” tort reformers has been contested from the start, their core message has proved quite alluring in contemporary mass culture. In fact, we contend that the very qualities that have drawn the most criticism from intellectuals have made the reform rhetoric more widespread and more memorable, producing an advantage in debates, deliberations, and other discourse. Our survey begins by outlining the basic logic of tort law, the important changes wrought in tort law practice in post–World War II America, and the political response of established interests seeking to reverse those developments. The second section provides a brief taxonomy of the tort reform movement—its organizational structure, strategic activities, financial base, and leadership network. We then proceed to outline the core forms and substance of knowledge communicated by pop tort reformers. These have included dramatic statistical claims, catchy phrases, protracted sermons on core ethical themes, and, perhaps most important, arresting anecdotal representations of legal failure. Running through all these forms of knowledge is a preoccupation with the forfeiting of individual responsibility that the modern, liberalized tort regime has encouraged and the need for a return to “commonsense” values and disciplined behavior. Our account concludes with some speculations about why these moralistic appeals seem to have struck a responsive chord in American mass culture. We assess the apparent effectiveness of these instrumental appeals specifically in terms of their fit with both the institutional proclivities of mass media and prevailing ideological currents in American political culture, themes that will be developed later in the book.

TORT LAW, TORT REGIMES, AND TORT REFORM

Some Basics of Tort Law

A tort is a legally actionable wrong that is neither criminal nor contractual. One commits a tort when one causes injury to persons or property by defaulting on some responsibility or expectation sanctioned by legislation or adjudication. Tort disputes are civil matters—unlike criminal matters, in which governments undertake to prove beyond a reasonable doubt that accused persons have violated with illicit intent duly enacted and carefully articulated laws backed by fines or imprisonment. In civil matters, some party or parties, perhaps including governmental officials or entities, blame others for failing to behave as a reasonable and responsible citizen would have done. If the misbehavior is said to have violated voluntary, explicit agreements, a dispute may take shape under the principles of contract law to establish what the disputants originally had agreed. Tort claims may include intentional harms, but far more often they involve accidental, unintended, and even unexpected harms resulting from (often poorly performed but) otherwise legitimate activity, including routine automobile accidents; unsafe facilities or property that result in personal injury; production of goods such as vehicles, drugs, clothing, food and the like that harm consumers; harmful by-products from production of goods, such as toxic chemicals in groundwater; and careless or incompetent practices by doctors or other professionals that result in physical infirmity, disability, or death. Complex social relations often will arguably involve criminal and civil laws and norms as well as contractual, quasi-contractual, and noncontractual understandings, but tort reforms concentrate on legal liabilities that do not follow from contracts or crimes.

Usually, the tort-victim and tort-feasor resolve conflicts short of securing legal representation or filing suit, so informal reconciliation or termination of disputes over liability for harm is the rule and formal tort cases are exceptions. If a matter reaches or threatens to reach a court, the aggrieved becomes a plaintiff, the party blamed becomes a defendant, and plaintiff and defendant repair to some more or less formal venue for resolution of the matter guided by tort doctrines. Those doctrines, shaped by judges or legislators over decades or centuries, detail circumstances under which the injured party may be able to shift a loss to another party or parties (Schuck 1991, 17). Despite the complexities and indeterminacies of competing principles, observers may identify the habitual judgments of courts and legislatures. Those habitual rulings constitute the tort regime: the harms about which decisionmakers will probably do something, the losses that this jury or that judge may recompense, and the costs that may be shifted to those who might better bear them.

Tort regimes, in practice, thus generate calculations of probabilities based on notions that “are as loose-jointed, context-sensitive, and openly relativistic as any principles to be found in the law. They do not simply accommodate social change; they invite the law to adapt to it” (Schuck 1991, 18; italics in original). Criminal law and contract law must be fairly predictable lest they fail to serve their core functions, but applications of tort law tend to be less foreseeable. Doctrines of criminal law almost always correspond to widely recognized mores, and principles of contract law aim to allow parties to an agreement to make law for themselves within broad social and moral perimeters. Because tort law frequently deals with unintended, unexpected, perhaps even unforeseeable consequences of often technically complex activity, tort principles usually are far more general and thus less explicit than either criminal laws or contract principles. Moreover, tort doctrines usually conserve the negotiations, accommodations, and compromises by which courts or legislatures produced tort decisions, with the result that tort “law” is seen to be more protean than other kinds of law, contrary to expectations that law should be settled. Consequently, tort rules in a given regime are sometimes unpredictable, the categorizations of facts unreliable, and the policies up for grabs. For most of American history, the discretion inherent in tort law arguably has worked in favor of the largest, most development-oriented enterprises and wellorganized corporate interests (Horowitz 1979). Newly legislated regulatory and compensatory schemes—such as systematic workers’ disability compensation, health insurance, zoning regulation, and environmental protection—have developed in various periods precisely to replace inadequate, piecemeal, inconsistent tort mechanisms.

The Historical Context of Contemporary Tort Reform

Changes in tort law have not been steady over time; rather, they have been mostly episodic, often responding to changes in and contests over core social relations. One important, unique period of change was the post–World War II era, when courts generally began to reduce the hurdles facing civil litigants—broadening standing, trimming immunities, abandoning the privity requirement in tort disputes—and enlarged the range of potential awards (Galanter 2002). These legal innovations were soon followed by a variety of social reform movements that actively mobilized law to make government, corporations, and select groups of professionals (doctors, for example) more responsive to, and responsible for, serious material injuries to consumers, minorities, women, the poor, and the environment. During the 1960s, prominent spokespersons at once exalted the promises of law for increasing civil justice in corporate America and decried the many barriers that impeded law’s promise, including not least those from the legal profession. Reform leaders such as Ralph Nader inspired the “public interest law” movement and “access to justice” movement aiming to increase the responsibilities of powerful organizations both within and through the law.

These liberal public-interest movements developed a multidimensional strategy with four interrelated components: passing new forms of civil rights and “social” regulatory statutes such as OSHA, NEPA, and other consumer and environmental acts; litigating against government to enforce regulatory action authorized by these laws; litigating directly via tort and civil rights claims to challenge and to regulate the harmful practices of large enterprises and professionals; and drawing mass media attention to expose the wrongs and harms of unaccountable power in contemporary society (McCann 1986). All these tactics aimed to increase the levels of anticipatory deterrence as well as compensatory “insurance” against the proliferating “risks” that rendered citizen-consumers vulnerable to harm in contemporary corporate society (Baker and Simon 2002; Rose 1999). These developments emerged, moreover, at the same moment in the late 1960s that the number of lawyers in our nation began to increase dramatically, far beyond the rate of population growth. All in all, this era of legally focused, security-oriented reform politics contributed to what often is called the increasing “judicialization” of politics and regulatory policy in the United States (McCann 1986).

Specific alterations in the regime of tort law during this era were, not surprisingly, widely perceived to disadvantage substantively and substantially those powerful established interests who were formerly advantaged, insulated, or uninvolved. Expansions of liability put entrepreneurs and enterprises on notice that some losses formerly borne by customers or society were now more likely to be assigned to those adjudged better able to anticipate or to afford them, which in turn materially altered costs, risks, and profits that economic decisionmakers might anticipate—or now be unable to anticipate. This provided cause for alarm among many corporate producers and select groups of professional service providers, most notably doctors. By the 1970s, tort awards were alleged to be ever more extravagant and arbitrary, which critics argued made corporate planning difficult, business profits and even assets less secure, and consumers as well as producers vulnerable.

The proliferation of activities subject to strict liability, for example, reduced potential plaintiffs’ burden of proving fault on the part of providers of goods or services. Joint and several liability made deep-pocketed defendants available to defray losses that otherwise might have gone uncompensated.¹ However, this occurred at the expense of private producers and public agencies, who feared that they would pay lavishly for fault that was only minimally theirs and that they would not be able to recoup such payments from more blameworthy defendants for the same reasons that plaintiffs could not—the defendants most at fault often had the least assets. Among the most concerned enterprises with large revenues at stake were insurance companies that might have to make good an increasing number of dubious claims and suspect lawsuits.

Modern class-action lawsuits further transformed the nature, meaning, and capacity of tort adjudication.² Victims who once had no shot at compensation now had access to the litigation battlefield through mass forms of legal representation. “Cause lawyers” representing the disadvantaged and other “progressive” interest groups strategically remade tort doctrines in court cases to remedy large-scale wrongs even as unaffiliated litigators invented novel actions and remedies in specific cases to ameliorate particularized injuries. The potential for big awards in class-action cases as well as the rapid growth in punitive damage awards generally together boosted the material as well as moral incentives for attorneys on contingency fees to take cases for group interests previously underrepresented in the political and legal system.³ This shift in legal liability for harm was often perceived as not only new, but as inherently unpredictable, capricious, and unwarranted. As Victor Schwartz, a leading lawyer and lobbyist for the tort reform movement told us, “the standards of punitive damages in most states are so vague that no one could really tell you what they are. . . . When you say you will be punished if you are reckless or wanton or malicious or intentional and these waves of words come to a jury, it really can come down to whether they like you or not.”

Having seen progressives wrest judgments, doctrinal changes, and notorious awards through novel tactics and ever-expansive strategies, corporate defendants and those who feared they would soon be civil defendants redoubled their public defenses within and beyond courtrooms. The tort reform movement in the 1970s developed to challenge, roll back, and otherwise reconstruct this expanded liability regime of tort law.

REFORMERS ON THE OFFENSIVE

Business-oriented reformers adopted a multidimensional strategy to advance their counterreform efforts. In keeping with the long-standing practices of business-friendly interests (Schattschneider 1960), tort reformers tended to use “insider politics” to readjust the tort regime and elements of tort law in legislatures, courts, and other councils of authority. They lobbied legislators, testified and otherwise provided information and ideas to investigators and formulators, published analyses and advocacy in elite journals, and argued vigorously but decorously before civic, business, academic, and especially governmental authorities for a return to commonsense standards of civil justice. Lobbying, testifying, and arguing articulated the negative consequences of the modern tort regime for national and local economies but accentuated the baneful effects of novel court decisions and settlements on national character as well. Although highly technical issues were necessarily raised, simple justice was as often invoked.

Over the last three decades, many reformers have complemented this insider politicking with additional efforts directed at what we call “pop tort reform.” Pursuing strategies more common among business groups over the last decades of the twentieth century than before, pop tort reform “went public.”⁴ Pop reformers articulated their case ever more through mass media to condition public attitudes and to supply to the public information that would advance tort reforms. The use of “paid media” (advertisements that reformers pay newspapers or broadcasters to publish) and “free media” (publicity for which reformers do not pay media) has complemented the reformers’ repertoire of influence.

This combination of tactics has greatly enhanced the capacity of pop tort reformers to shape knowledge about torts and the civil system. We distinguish analytically four aspects of this spreading of knowledge. First among essentials, organization protects mass-marketed reform from clashing messages, distracting disagreements about strategic themes, or other digressions. For messages to be mutually reinforcing and effective and energies to be complementary and targeted, organizations must draw on ample financing, and financial support itself must be obtained and man- aged in an organized and businesslike fashion. Beyond organizational and financial management, it follows, “outside” tort reformers must be able to rely on leadership, by which we mean personnel who exercise guidance of and control over the formulation and release of information. Organization, financing, and leadership are essential to the accomplishment of the pop tort reform mission, but ideas constitute that mission. Absent ideas that arrest attention, any knowledge imparted is more likely to sustain a trivia contest than a regime change. Although we next turn to consider organization, financing, and leadership separately, it was their strategic coordination in promulgating big, attractive ideas that enabled pop tort reformers to affect and to effect knowledge.

Organizing for Strategic Action

Because tort reform issued primarily from interests who perceived themselves to be damaged or endangered by changes in civil law, pop tort reform systematized efforts to reverse some legal developments and to ameliorate others through creation and dissemination of knowledge both comprehensible to ordinary citizens and consonant with reforms. To establish pop tort reform on a popularly accessible but intellectually imposing base, reformers drew on the prodigious outputs of the Manhattan ...