Why Lawsuits Are Good for America: Disciplined Democracy, Big Business, and the Common Law.

Why Lawsuits Are Good
for America

Carl T. Bogus
New York University Press
www.nyupress.nyu.edu
[phone]
227pp., $34.95

In Why Lawsuits Are Good for America, law professor Carl Bogus sets out to defend the civil jury trial and the common-law regulation of consumer product safety in the face of relentless assaults from manufacturers and their surrogates, such as the American Tort Reform Association and the Product Liability Coordinating Committee. He largely succeeds in this ambitious and carefully constructed work of legal history and policy analysis.

Bogus--who teaches at Roger Williams University School of Law in Bristol, Rhode Island--aims high when he contends that products liability is the "common law's greatest advancement", of the 20th century and that the common-law system is "almost incapable of flatly irrational results." But his extensive study of the system's historical development and contemporary operation goes a long way toward supporting his claims.

Bogus's primary argument is that products liability litigation is a system of "disciplined democracy." Ordinary citizens, he writes, weigh evidence and reasoned argument to make what is fundamentally a judgment of public values in deciding whether mass-marketed consumer products are unreasonably dangerous.

Throughout the book, Bogus deftly weaves a history of U.S. legal structures--including the independent judiciary, the common-law regulation of private relationships, and trial by jury in civil cases--with an analysis of current policy debates over the future of these institutions. He leaves no doubt that the latter is his primary concern, as he begins his study by examining, in depth, tales of "frivolous" litigation that industry representatives spin in their attack on products liability law.

For example, Bogus examines the factual record of Vandevender v. Sheetz, Inc. (490 S.E. 2d 768 (W. Va. 1997).) In that case, a jury awarded substantial damages to a convenience store employee who had suffered a workplace injury. She was fired because her injuries prevented her from performing all her job duties.

The American Tort Reform Association distorted Vandevender by portraying it as a case where the plaintiff had received a windfall for merely injuring her back while opening a pickle jar. Bogus succeeds in showing that it was really a case about retaliatory discharge and disability discrimination where a state's highest court upheld a sizable punitive damages award.

Although Bogus is on firm ground in dismantling tort "reform" tales, his use of this case and others like it to lead off the argument that lawsuits are good for America gives a sense that industry critics are dictating the terms of the debate over products liability.

For example, Bogus provides an extensive discussion of the McDonald's coffee case. The effect this litigation had in spurring industrywide changes in the temperatures at which fast-food establishments may serve coffee, though not insignificant, pales beside the effect that products liability litigation had in taking asbestos off the market. Yet Bogus disposes of the asbestos litigation with only a single sentence buried at the end of a chapter. This presentation would better support the argument that lawsuits are not so bad rather than the affirmative position set forth in the book's title.

Bogus regains his footing when he turns to history and the development of the democratic structures of the U.S. civil justice system. He traces the judiciary's status as an independent and equal branch of government to the New England colonists' tolerance for religious dissent and recognition of separate spheres of authority. He distinguishes common law's development in the United States from that in 17th- and 18th-century England by contrasting the egalitarian nature of early U.S. society and the need for broad-based access to courts with the "petrified forest of arbitrary rules" of common-law pleading that made English courts an exclusive refuge for the gentry and wealthy businessmen.

Bogus also argues that citizens sitting as jurors have been a central and democratic feature of U.S. common law. He explains that panels of ordinary citizens, through their diverse backgrounds and collective experience, bring greater insight to adjudicative fact-finding than would any individual decision-maker. "Participation by the people is considered an essential check on power--both governmental ... and the power of elites," he writes.

At the same time, Bogus supports his underlying claim that the common-law jury trial is a "disciplined" exercise in democracy. He examines the procedural devices through which judges and parties historically have been able to restrain the power of juries. But the author may go too far: Nearly all of his discussions of punitive damages awarded by juries include the fact that trial or appellate courts later significantly reduced the awards.

This presentation of evidence raises questions as to whether jury deliberations are, in fact, as reasoned as Bogus claims or, conversely, whether courts exercise too much control over this democratic institution. Still, these checks on the power of juries support the author's bottom-line contentions that the common-law tort system is disciplined and is not likely to produce irrational outcomes.

In returning his argument to the present day, Bogus effectively contrasts the deliberative and democratic qualities of common-law regulation of consumer product safety with power struggles that typically hamper the effectiveness of agency regulations.

In a chapter devoted to the National Highway Traffic Safety Administration (NHTSA), Bogus examines how the regulated auto industry restrains agency oversight by employing former NHTSA officials, deploying superior resources to drown the agency in technical objections to proposed rules, challenging the agency's authority before skeptical courts, and, of course, making large campaign contributions to elected representatives who control the agency's budget. Thus, it was the media, not NHTSA, that analyzed the agency's data and uncovered the danger of Firestone tire-tread separation.

Bogus also uses the example of Ford's evasion of a NHTSA inquiry concerning Bronco II rollovers to illustrate how litigation can uncover safety hazards more effectively than agency oversight. Ford had limited its response to NHTSA by excluding all pre-production tests, which were the only ones showing the rollover problem. Meanwhile, the company was severely sanctioned when it attempted a similar evasion in litigation over seat-installation safety in another of its vehicles.

Bogus concludes by offering the recent tobacco and gun litigation struggles as examples of disciplined and democratic regulation. He connects the tobacco industry's decades-long winning streak in suits brought by individual smokers and the industry's subsequent multibillion-dollar liability to the states for tobacco-related health costs with popular attitudes concerning personal responsibility, which are reflected in jury awards.

The author sees these attitudes as driving the evolution of products liability doctrine from former U.S. Supreme Court Justice Benjamin Cardozo's paradigm of "strict liability for defective products" to an emerging paradigm of "strict liability for unreasonably dangerous products" such as handguns. As Bogus would have it, the willingness of jurors to hold manufacturers liable for injuries resulting from the foreseeable use of products is simply an expression of widely held cultural values in a democratic society.

Why Lawsuits Are Good for America is a sophisticated study that makes an important contribution to discussions of the civil justice system. Bogus's attention to the legislative debate over tort "reform" has probably blinded him to recent developments in the law regarding federal preemption and mandatory arbitration that have already eviscerated the right to a jury trial in a huge number of cases. Still, the author succeeds in showing that common-law products liability litigation gives voice to widely held public values by allowing ordinary citizens to participate in health and safety regulation.

Michael J. Quirk is the National Association for Public Interest Law Consumer Rights Fellow with Trial Lawyers for Public Justice, a public interest law firm based in Washington, D.C. He cowrote Consumer Arbitration Agreements: Enforceability and Other Topics, published in August.