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Plaintiffs Lawyers Take Aim at Democracy
By Walter K. Olson
Mr. Olson, a fellow at the Manhattan Institute, edits the Web site Overlawyered.com and is author, most recently, of "The Excuse Factory: How Employment Law Is Paralyzing the American Workplace" (Free Press, 1997).
In a brute triumph for litigation force and a grim setback for democratic governance, the Clinton administration and lawyers for city governments last week bullied the nation's largest gun maker, Smith & Wesson, into agreeing to a variety of controls on the distribution of its products that the administration hadn't been able to obtain through the normal workings of legislation. Glock and other gun makers appear likely to follow.
With quaint if unintended humor, reporters describe Smith & Wesson's capitulation as "voluntary." In exchange for knuckling under to a long list of demands, which include the adoption of external trigger locks, the development of "smart gun" technology within three years, and extensive controls on the marketing of its products, Smith & Wesson was spared the threat of a direct federal lawsuit and promised a settlement of some of the 30-odd suits filed against it by municipalities. The sheer cost of legal defense against these suits, whatever their outcome, had grown ruinous: a company statement said the deal was aimed at preserving the "viability of Smith & Wesson as an ongoing business entity in the face of the crippling cost of litigation."
Using the deliberate infliction of litigation costs to obtain leverage over an opponent was once considered a breach of legal ethics, but times have changed. Litigators boasted that their attacks would bleed the thinly capitalized gun industry into submission. Housing and Urban Development Secretary Andrew Cuomo warned gun makers that unless they cooperated they'd suffer "death by a thousand cuts." Several makers have in fact gone bankrupt since the courtroom siege began.
Supporters of the new settlement seemed to treat as a virtue that it doesn't have to be run by Congress for approval. White House domestic policy adviser Bruce Reed said the agreement showed that "the public good doesn't have to be held hostage to legislative stalemate," while the New York Times reported that the deal has "opened a new avenue for regulating the firearms industry without action from Congress," where gun-control legislation has fallen victim to "partisan gridlock."
"Legislative stalemate" and "partisan gridlock" are merely pejorative terms for the normal workings of democracy. When the legislative process is working, measures that are passionately opposed by an important constituency within the majority legislative party do not tend to hurtle to a speedy enactment.
Advocates of the hire-a-lawyer brand of gun control make a habit of thumbing their noses at the constitutionally specified lawmaking branch ("All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." That's hard to miss, being Article I, Section 1.)
"You don't need a legislative majority to file a lawsuit," proclaims Elisa Barnes, the chief plaintiffs lawyer behind a private federal suit against gun makers that went to trial in Brooklyn, N.Y. Miami-Dade County Mayor Alex Penelas, according to one news report, "said he was using the courts in an attempt to crack down on the gun industry because the Floridalegislature refused to do so. 'Every year that I've gone to the legislature we have basically been told to take our case elsewhere,' he said."
Given the ordinary political instinct to protect one's turf, you'd think the Republicans who control Congress would unite in wrath at the Clintonites' invasion of their legislative prerogatives. Moderate and conservative congressmen would rise together, you'd think, to declare that -- whatever their differing views on the merits of one or another gun-control measure -- the use of litigation to bypass and subvert democracy is unacceptable. Yet they have been nearly silent. Rep. J.C. Watts of Oklahoma did comment, but his remarks were favorable: "We hail Smith & Wesson for taking a proactive approach to the problem of violence."
Likewise absent from the field, with a few honorable exceptions, has been the American business community. It would surely make a symbolic difference if a few CEOs of companies outside the gun industry chipped in personal checks to start a legal defense fund for small gun makers being bulldozed by the cost of litigation, to give them at least a hope of surviving to fight the suits on the merits. Or if they let it be known that mayors who've signed on to the gun-suit jihad should stop passing themselves off as "pro-business." Not long ago the mayor of Bridgeport, Conn., Joseph Ganim, a gun-suit mastermind who's considered ambitious for statewide office, was feted by a Chamber of Commerce in his local Fairfield County. Hey -- it's someone else's industry he's working to destroy, right?
Conflict-averse businessmen love to grab at the excuse that, well, guns are different. But tobacco and breast implants were different, too. In the next rounds, lead paint, latex gloves, violent videogames and managed-care insurance policies will be different too. Why, these companies' predicament has nothing to do with the litigation threats my industry faces! Thus do businesses wind up conforming to the First Law of Risk-Averse Public Affairs: Never head out to the rescue of anyone who's less popular at the moment than you are.
How unlike the wisdom of the trial lawyers themselves, who in their attacks on American industry have been keenly aware of the advantages of mutual cooperation. As they know well, each successful new round of assault litigation contributes new precedent, new revenue, new political alliances and newly honed techniques to assist in future rounds.
Thus the gun round built on the tobacco round in its modus operandi: Demonize the opponent from day one. Fly around the country signing up sympathetic plaintiffs, particularly governments. Shop for favorable judges and juries. File suits rapidly all over the place on different theories, on the assumption that something's bound to stick. Lavish resources on working the press and sympathetic interest groups. Wait for the chance to "turn" one of the defending companies against its competitors.
This is how important public questions get hammered out secretly in the back offices of influential lawyers and presented to the public as a fait accompli. So much for the integrity of democratic process.
©2000 The Wall Street Journal
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