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Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue.

Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue Stephan ie Mencimer Free Press 291 pp., $26

As an academic, I was lucky enough to be home last Presidents' Day watching Fox News. Our current president, George W. Bush, paid tribute to our first president, George Washington, at Mount Vernon. Bush's speech noted that "we can find the best of America in President Washington's spirit, who saw freedoms as not America's alone." Bush observed that Washington "accepted the presidency because the office needed him, not because he needed the office."

Those were the days, my friend, and we are reminded that they are at a very definitive end by Stephanie Mencimer's excellent new book, Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue. The book is about the tort "reform" movement, which Mencimer, a contributing editor for the Washington Monthly and a seasoned reporter, describes as the "marriage of corporate desire for immunity from lawsuits and the new breed of GOP politics."

She notes that the campaign for tort "reform" is more than 30 years old, manifest in the efforts of insurers, tobacco companies, and corporate-funded think tanks and advocacy groups to ply reporters and the public with "fictitious or badly misleading stories that purport to show that the nation suffers from a crisis of frivolous litigation." And the movement was more than the wind beneath Bush's wings as he rose to the presidency; in fact, Karl Rove created Bush's candidacy on behalf of big tobacco and the tort "reformers," Mencimer says.

The past six years have created what economist Lawrence Kudlow calls a "low regulatory environment," or what his fellow CNBC financial celebrity Jim Cramer calls "a government of, by, and for the corporation." Tort law has become the consumer's only defense to corporate wrongdoing, with the added benefit of being a free market solution.

Big businesses have succeeded in "taking bad public-policy proposals, packaging and stage-managing them, and selling them to the public"--all to the detriment of average citizens, Mencimer argues. The Wall Street Journal's editorial page, for example, routinely highlights how tort litigation allegedly harms ordinary Americans and drives up the cost of doing business in the United States.

Mencimer is at her best discussing the "lazy and gullible" reporting on the civil justice system that has contributed to severe restrictions on civil lawsuits and the power of juries across the country. Reporters, she says, "have bought into the propaganda, the spoon-fed story tips, and bogus research generated by the tort reform movement."

The public's take on the McDonald's coffee case shows how successful the "reform" propaganda machine has been. That case "is the beginning and the end of what many Americans know about the civil justice system," Mencimer writes. Even after countless "news" reports, the public remains largely unaware of how entirely justified Stella Liebeck was in suing Mc Donald's in light of her napalm-like burns and the hundreds of other people who suffered similar injuries from McDonald's superheated coffee.

According to Mencimer, it is a lack of legal expertise and experience that makes reporters "vulnerable to spin" and subject to an "overreliance on think tank-based sources." However, that excuse does not apply to the new crop of journalists who are lawyers by training, emerging most visibly as cable television anchors and hosts. Certainly, they should be able to better evaluate tort "reform" research from the corporate-funded and agenda-driven Manhattan Institute, for example.

Mencimer saves some criticism for Democrats, too, saying they fail to understand 'Just how intertwined the tort reform campaign is with the Republicans' political goal of solidifying [their] majority." Not this Democrat! I think we can find the worst of America in the tort "reform" spirit--and the politicians who ride it to victory.

Mencimer acknowledges and thanks Victor Schwartz, "the godfather of the the tort reform movement," for lecturing her on the "nuances of civil justice even when he knew I was writing a book critical of his life's work."

ATLA's name change to the American Association for Justice--if it is accompanied by a better strategy for educating the public about the positive role tort law plays in our democracy--may address many of Mencimer's concerns about the difficulty of confronting what the late law professor Tom Lambert called the tort "deformers." Americans actually need an expansion of their tort liberties to confront the new dangers of our information-based economy. The year 2006 was the worst in American history for the theft of consumers' personal information. Millions of Americans have been harmed by the excessive but preventable dangers of online stalking, cyberfraud, and data theft enabled by weak software security. Judicial and legislative tort "reforms" have made it difficult for tort law to address these 21st-century dangers.

I highly encourage everyone to both read Blocking the Courthouse Door and recommend it to others. The book provides fascinating historical detail and offers practicing attorneys a chance to reflect on the big picture of tort "reform." For the general public--including many first-year law students--whose views have been tainted by antiplaintiff media messages, the book is a great antidote.

MICHAEL L. RUSTAD is the Thomas E Lambert Jr. Professor of Tort Law at Suffolk University Law School in Boston. He is coauthor of In Defense of Tort Law (NYU Press 2002).
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Author:Rustad, Michael L.
Date:May 1, 2007
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