Read This or I'll Sue You

Jonathan Rauch | February 6, 1999

(Page 2 of 2)

So the cities set out to shop around and try lots of different claims until they found one that some jury would buy, and then with that club they could force the gun makers to buy them off and to accept various regulations that the legislatures had refused to approve. New Orleans tried a product-liability claim. Chicago tried a public-nuisance claim. More than a dozen other cities announced their plans to join in the fun.

They were like a bunch of bandits lurking on the highways, but using lawsuits instead of revolvers. In fact, I called it the New Banditry in a pathbreaking article back in '99. (See NJ, 2/6/99, p. 316)

"'The New Banditry'! A coinage of genius, a seminal rubric!''

Right you are, laddie, and the Pulitzer and Nobel committees thought so, too.

"But why wasn't there an outcry?''

Oh, at first there was, but soon political lawsuits became common. The tobacco companies and their allies adopted the enemy's tactics. They sued one of their most effective critics, a professor, for using state money (his salary, for instance) to do "political research.'' A conservative activist-lawyer in Washington took to suing the White House for a living. By 1998, he had sued the Administration at least 18 times. He used depositions to ask if an Administration official had called him a "twerp.''

Now, there is corruption and corruption. You can beat ordinary corruption--bribery, for example--by fighting it with law. But what do you do when law itself is twisted to political ends? How can you fight back when powerful people begin using for predation the very legal devices intended to protect against predation? In 1997, a Maryland judge dismissed the state's lawsuit against Big Tobacco, pointing out that the government had no legal claim against the industry. Eight hours before its midnight adjournment in April 1998, with the scent of $3 billion in its nostrils, the state legislature rewrote the law--retroactively.

This kind of corruption feeds on itself. Once the law becomes a weapon of predation, then the only protection is retaliation. A lot of the people who financed the sexual harassment lawsuit against the President were just the sort of conservatives who, in the past, had complained about liberals' abuse of the courts. One day on a long airplane flight, I got tired of reading the emergency instructions and picked up National Review, and there I found an article by a conservative writer named Peter Schweizer about a lawsuit against the filmmaker Oliver Stone and everyone else associated with making or distributing the film "Natural Born Killers." It seemed the plaintiffs' daughter was murdered by two teenagers who were enraptured of Stone's violent movie, and the filmmakers "knew or should have known'' the movie would "cause and inspire people to commit crimes.''

I wasn't surprised, of course, by the lawsuit's wild reach, which was really a backdoor ban on cinematic violence. And I nodded happily when Schweizer wrote that Stone "made a gruesome and immoral film, for which he deserves public obloquy, but not legal liability.'' But I was brought up short by the conservative writer's further conclusion: "It is some consolation that the same legal system that makes cigarette and gun manufacturers tremble has temporarily struck a little fear in the heart of Oliver Stone.''

This, you know, is how rot spreads. Bad habits drive out good ones. A few people sue for profit or political gain, and win. Their enemies can only squeal indignantly for so long before they follow suit, excuse the expression. Then finally the government itself gets into the act. The President showcases a political lawsuit before the assembled dignitaries of Congress and the Supreme Court, and the process of legitimation is complete. Corruption is total when people cease to notice it. That is what happened in 1999.

"Wow. But, Granddad, if you're so smart, how come you're in the fish-bait business?''

Remember that famous article? Well, some lawyers noticed that reading alarmist commentaries drove up people's blood pressure, raising Medicare costs . . .