“Never stir up litigation. A worse man can scarcely be found than one who does this.”1
“The era of big government may be over, but the era of regulation through litigation has just begun.”2
“The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who would rather kill them, cut them up, and put them on the grill now.”3
Frederich Hayek in his opus,Â The Constitution of Liberty, wrote that “[t]here is probably no single factor which has contributed more to the prosperity of the West than the relative certainty of the law....”4 In the year 2003, American civil justice promises only the certainty of expense and a strange, relative sense of justice.
To understand why, one must look beyond the anecdotal, beyond the multi-million car paint jobs and cups of spilled coffee, to the deeper currents of American culture.
The eternal refrain from the defense bar is that it engages in a difficult contest of reason against emotion, and of logic against impulse. This is doubly true at a time when the lines between entertainment and adjudication, and between reality and make-believe, have all but disappeared. The reason for this is that the law has become our culture’s principal drama, much as Westerns and detective shows were in past decades.
Just as the sheriff was always the good guy, so these legal thrillers are invariably told from the side of the plaintiffs’ bar. In all of them—A Civil Action,5 The Rainmaker,6Â andÂ The Practice7—the story reaches the denouement when the courageous trial attorney, in the person of John Travolta, young Matt Damon, or fiery Dylan McDermott, hammers the railing and tells the jury that a great wrong has been done.
Somebody has got to pay.