Un-Making Law: The Conservative Campaign to Roll Back the Common Law.

Un-Making Law: The Conservative Campaign to Roll Back the Common Law

Jay M. Feinman Beacon Press www.beacon.org 256 pp, $26

Grover Norquist, a Republican tax strategist, once told a reporter that his party's ultimate goal was to shrink government "down to the size where we can drown it in a bathtub." The neoconservatives' large," project is to give corporate America complete autonomy in the marketplace by downsizing government, as well as the civil justice system, into a semi-comatose state. Jay Feinman, a distinguished law professor at Rutgers University, exposes this campaign to dismantle the common law by changing particular rules of tort, contract, and property law to undermine the rights of ordinary citizens.

Chapter one is a telescopic view of the success corporations and conservatives have enjoyed in this campaign. Conservative think tanks have but one thought: to replace the nuanced principles of the common law with a simpleminded vision of a free-market society that never was and never could be. Suppression of consumer remedies in the name of the free market has its roots in the Gilded Age, when the nation was ruled by what historian Richard Hofstadter so aptly dubbed the "grandiosely or corruptly rich." During the legal formalism period, a curious blend of natural law, social Darwinism, and laissez-faire economics legitimized the looting of America by plutocrats such as Jay Gould and Cornelius Vanderbilt.

Modern neoconservatives are resuscitating discredited 19th-century legal concepts under the guise of upholding personal liberty, the sanctity of the market, and free enterprise--and Feinman provides many examples. For one, Richard Epstein, a University of Chicago Law School professor, advocates replacing public schools with privatized education financed by vouchers. For another, federal circuit Judge Alex Kozinski argues that courts should stop policing unfair or unconscionable terms in contracts and instead enforce them as written.

In chapter two, Feinman examines tort "reform," which he calls the "longest-running front" in the war against citizens' rights. "Reformers" target tort law because it is the one area that embodies what Justice Harlan Stone viewed as "the most elementary conceptions of justice and public policy." But, the author notes, tort law has a deterrent as well as a compensatory function, as illustrated by the asbestos, Dalkon Shield, and Ford Pinto cases.

Feinman argues that the right-wing attack on contingent fees has a wider purpose: padlocking the courtroom door to the victims of corporate wrongdoing. The contingent fee system made it possible for the states to retain private law firms to litigate tobacco suits; Big Tobacco would not have been brought to the bargaining table under a "loser pays" system or other "reformist" proposals. Feinman contends that proposals to cripple the contingent fee system will make it far less likely that future landmark cases--such as the case that inspired the book and film A Civil Action-will ever be filed.

Tort 'reform' myths

In chapter three, Feinman critiques the ideological agenda of the tort "reformers." He argues it is based on two related myths: that there was a "golden age" of tort law that can be re-created and that greedy trial lawyers are suing guiltless defendants at random.

The first myth is that in that period, only real wrongdoers were held liable and victims were fairly compensated. In reality, the courts developed liability-limiting doctrines--such as contributory negligence, assumption of risk, and the fellow-servant rule--that effectively denied recovery to thousands injured or killed in workplace accidents.

During the 19th century, tort law doctrines shifted the cost of accidents from the employer to the family, community, and the injured worker. Similarly, the harsh doctrine or privity of contract deprived consumers of a tort remedy for injuries caused by dangerously defective products. In the "golden age" of tort law, there were no remedies for the victims of medical malpractice because of doctrines such as charitable immunity.

The second myth is that the tort system is broken because liberal judges and emotional jurors favor greedy plaintiffs and their manipulative lawyers. Feinman's realistic review of the empirical data shows that the tort system works well. The conservative campaign to unmake tort law is occurring in the face of a growing body of empirical research that confirms there is no tort crisis.

In chapters four and five, he documents how big business has effected changes in contract law that allow corporations to exploit their dominant position. The neoconservative position on contract law is based on the assumption that people are motivated primarily by economic self-interest and have the unfettered right to pursue self-interest without government interference. Increasingly, the wholesale enforcement of "take it or leave it" contracts is forcing consumers to waive their rights to have a jury trial or to seek punitive damages.

Feinman discusses the spread of mandatory arbitration, which is often prohibitively expensive, biased toward big business, and unreviewable by appellate courts. Another troubling development is the courts' tendency to uphold "choice of forum" clauses. Disney, for example, requires all disputes to be decided in a state or federal court in Los Angeles County, He concludes that the trend in contract law is to magnify the power of big business to impose one-sided contracts in a forum where the result is too often preordained.

Next, Feinman looks at the neoconservative effort to rewrite the common law of property to cripple government's ability to control rapacious land development, protect the environment, and rein in unethical corporations. As they are doing in torts and contracts, neoconservatives are bringing us back to the future by resurrecting absolute notions of property rights for princes of the modern economy.

One dimension of neoconservative attitudes toward the law that Feinman doesn't address is how Congress has narrowed intellectual-property common law with business-friendly statutes such as the Sonny Bono Copyright Term Extension Act, the Digital Millennium Copyright Act, the Anticybersquatting Consumer Protection Act, and the Federal Trademark Dilution Act. After taming torts, contracts, and property, the neoconservatives' next battleground will be intellectual property.

I highly recommend this book to trial lawyers because it recognizes that tort law is not the only target in this radical campaign to reduce consumer rights. Today's neoconservatives also seek absolute property rights and contracts free of government regulation.

Feinman's insight, that there is a close parallel between the contemporary right wing's approach to the common law and the legal ideology of today's robber barons, is the first step to debunking their demonstrably [ false assertions. To paraphrase torts scholar Tom Lambert, Feinman's new book is a thunderbolt falling on an inch of ground, but the light from it fills the horizon of the common law.

MICHAEL L. RUSTAD is the Thomas F. Lambert Jr. Professor of Law and codirector of the intellectual property law concentration at Suffolk University Law School in Boston.