Civil Justice Memo
No. 12 October 1988
Election ‘88: The Courts as an Issue
By now it's a cliche that campaigns are fought on issues that the candidates can't do much about if elected. One way or another, most of the issues this year have this in common. They are all fast slipping out of the control of elected leaders and being taken over by lawyers and courts.
Crime, of course, is an area where the litigators are in control. So in large measure are the schools, as any principal finds out who tries to expel a disruptive student or start an innovative new program. But the law's empire is fast invading new provinces:
Competitiveness. No other country runs a legal system like ours, and it shows. U.S. makers of small aircraft and sporting goods have been virtually driven out of business by liability while foreign makers thrive. Europeans avoid joint ventures for fear of being drawn into the American courts.
High technology. In areas from genesplicing to space technology to laser surgery, leadingedge innovators are caught up in an endless guessing game with the courts. The tort onslaught has virtually halted most U.S. research on contraceptives and drugs related to childbirth ("Who in his right mind," the president of one major company has asked, "would work on a product today that would be used by pregnant women?") and is starting to drive other kinds of research offshore as well.
Waste disposal. Respected engineering firms are refusing contracts to clean up dump sites, fearful of being the only deep pockets on the scene. Incinerators are tied up in court for years while landfills overflow and midnight dumpers have afield day.
Child care. Candidates are searching for ways to expand parents' daycare options. No matter; skyrocketing insurance rates, driven by tear of massive verdicts, are closing down centers as fast as they open.
On issue after issue the story is the same: a president or governor can propose, but the courts dispose. Curbing hospital costs? Malpracticewary doctors spend billions on redundant testing and covertheirtail paperwork. Making labor markets more flexible? The most rigid constraints on hiring, firing and the like now come from the courts, not Washington. Getting AIDS drugs to market faster? The FDA may approve and endorse, but drug and vaccine sellers, are more afraid of what the courts could do.
In California and Texas, outofcontrol legal systems are on the campaign agenda this year in big ballot fights. But this issue is beginning to arrive elsewhere too.
And the movement for legal reform now has its manifesto. Peter Huber's book LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES is now out from Basic Books. No other book so pungently, thoroughly and clearly explains what has gone wrong in the liability courts. It's even entertaining to read: you'll laugh at Peter's wit while you wince at the outrages of the system he describes.