Why Lawsuits are Good for America: Disciplined Democracy, Big Business, and the Common Law
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Judging by the frequency with which it makes an appearance in television news shows and late night stand up routines, the frivolous lawsuit has become part and parcel of our national culture. A woman sues McDonald's because she was scalded when she spilled her coffee. Thousands file lawsuits claiming they were injured by Agent Orange, silicone breast implants, or Bendectin although scientists report these substances do not cause the diseases in question. The United States, conventional wisdom has it, is a hyperlitigious society, propelled by avaricious lawyers, harebrained judges, and runaway juries. Lawsuits waste money and time and, moreover, many are simply groundless. Carl T. Bogus is not so sure. In Why Lawsuits Are Good for America, Bogus argues that common law works far better than commonly understood. Indeed, Bogus contends that while the system can and occasionally does produce "wrong" results, it is very difficult for it to make flatly irrational decisions. Blending history, theory, empirical data, and colorful case studies, Bogus explains why the common law, rather than being outdated, may be more necessary than ever. As Bogus sees it, the common law is an essential adjunct to governmental regulation—essential, in part, because it is not as easily manipulated by big business. Meanwhile, big business has launched an all out war on the common law. "Tort reform"—measures designed to make more difficult for individuals to sue corporations—one of the ten proposals in the Republican Contract With America, and George W. Bush's first major initiative as Governor of Texas. And much of what we have come to believe about the system comes from acoordinated propaganda effort by big business and its allies. Bogus makes a compelling case for the necessity of safeguarding the system from current assaults. Why Lawsuits Are Good for America provides broad historical overviews of the development of American common law, torts, products liability, as well as fresh and provocative arguments about the role of the system of "disciplined democracy" in the twenty-first century. Trial Magazine A sophisticated study that makes an important contribution to discussions of the civil justice system
Acknowledgmentsxi Introduction1 1 Why Tell Tales?6 Danforth's Tale6 Proctor v. Davis: The Real Story11 Why Tell Tales?17 2 War on the Common Law22 Warriors22 War on the Common Law27 The Tort Reform Agenda34 The Common Law and America40 3 The Third Branch of Government42 Beginnings42 Separation of Powers and the American Judiciary45 The Common Law Tradition52 An American Bench and Bar60 An American Procedural System62 4 Disciplined Democracy and the American Jury66 Legends66 The Founders and the Civil Jury77 The Contemporary Civil Jury: England versus America79 Disciplined Democracy82 Is the Civil JuryCompetent?88 The Civil Jury and Societal Values94 5 The American Common Law System102 Is Proctor an Example of System Failure?102 The Four Legs of American Common Law115 Why the Common Law Is Special123 6 Who Regulates Auto Safety?138 Administrative versus Common Law Regulation138 The Stunning Improvement in Auto Safety141 Administrative Regulation145 The Bronco II Story159 Who Regulates Auto Safety?163 Balancing Safety and Other Considerations169 7 The Three Revolutions in Products Liability173 Cardozo's Paradigm173 The First Revolution: Strict Liability for Defective Products184 The Second Revolution: Strict Liability for Nondefective Products with Unreasonably Dangerous Features190 The Third Revolution: Strict Liability for Unreasonably Dangerous Products193 8 The Common Law and the Future197 Tobacco and Guns197 Common Law in the Twenty-first Century211 Notes221 Index259 About the Author265
