Reason Magazine - Contributors

Dangerous When in Power

wo@walterolson.com (Walter Olson) — Tue, 13 Feb 2007 07:15:00 EST

George Barnes worked as a shipfitter at the Long Beach Naval Shipyard for 25 years, from 1967 to 1992. In 2005 he was diagnosed with terminal lung cancer, a condition he blamed on exposure to asbestos at the yard. A San Francisco jury agreed and awarded Barnes and his wife, both 60 years old, $10.3 million.

The jury attributed 15 percent of the legal responsibility for his illness to the Thorpe Insulation Co., the only defendant to go to trial in the case. It assigned a further 25 percent to other companies not present in the courtroom, and 5 percent to Barnes himself. And it found the predominant share of the blame-55 percent-to rest with the U.S. Navy, which operated the Long Beach Naval Shipyard from its wartime origins in 1943 through its closure in 1997.

The Navy may have been the most blameworthy party, but it was not in danger of having to write a check to Barnes or his widow. As it had done in thousands of other asbestos cases, it avoided any legal or financial responsibility through what is known as sovereign immunity-the government's freedom from being sued except in cases where it consents to let a suit go forward. Barnes was not legally barred from suing various private companies that supplied the shipyard with asbestos-related products, but many of them were defunct, often bankrupted by earlier asbestos suits. The Thorpe Insulation Co. happened to be one of the remaining still-solvent companies, but a lawyer for Barnes said the Thorpe firm would probably not have the assets left to pay even its 15 percent share of the verdict.

Asbestos exposure has been a genuine public health calamity, having caused much death and disability among exposed workers. Much of the early journalistic coverage, taking its lead from Paul Brodeur's early series in The New Yorker, has treated the episode as a case study in the callousness of private enterprise, which is said to have exposed workers to the lethal mineral for decades until at last brought to heel by the efforts of public-health activists, government regulators, and trial lawyers. That's consistent with the wider conventional view, which treats hazardous products as a sort of standing reproach to capitalism: Businesses foist such products on us in search of profit, the narrative goes, while government protects us from them. And there is much in the asbestos debacle that does reflect discredit on private companies' actions.

Yet the government, our alleged protector, has done much at all levels to promote products later assailed as needlessly unsafe, from tobacco to lead paint, from cheap handguns to Agent Orange. Often the state is at least as aware of the risks as the businesses that distribute the product, and in at least as good a position to control or prevent them. But-shaped and propelled by the incentives provided by our litigation system-our process of organized blame hardly ever puts the government in the dock.

Government Asbestos

Asbestos has been used at least since Roman times, and ancient medical authorities noted that workers whose job was to handle the fiber developed diseases of the lungs. By the early 20th century insurance companies recognized asbestos fabrication as among the occupations most dangerous to human health, and by the 1930s-that is to say, before the outbreak of World War II-workers' compensation systems listed asbestosis as a compensable condition. In short, contrary to what is sometimes imagined, the hazardousness of airborne asbestos fibers was in no way a secret somehow confined to the executive offices of asbestos-mining tycoons. It was very much common knowledge to those who took an interest in industrially caused disease, including the federal government.

From 1939 on, the U.S. government's Liberty Ship and Victory Ship programs turned the formerly sleepy American shipbuilding trade into the engine of perhaps the most intense construction program in history. In the words of the Cardozo Law School professor and asbestos-law expert Lester Brickman, "One hundred and thirty-one shipyards operated on a 24 hour a day, 7 day a week schedule, building 7,000 ships and performing 67,000 repairs." From first to last, speed was of the essence: The time needed to complete new ships was shaved to mere weeks. Asbestos to insulate the ships was deemed a vital war material, and naval officials tightly controlled the mineral's distribution, ordering it delivered to government specifications, using powers of requisition to direct its purchase from private companies, and stockpiling the results at the government's General Services Administration facility at Baton Rouge, Louisiana.

That sense of urgency helped supply Great Britain and win a two-ocean war. The same haste, however, also relaxed the sense of caution with which workplace asbestos exposures were approached. Like other experienced participants in industry, the Navy was under no illusion that the substance was somehow safe. "Asbestosis is an industrial disease of the lungs incident to the inhalation of asbestos dust for prolonged periods," observed the Navy's Surgeon General in a 1939 annual report on health conditions at the New York (Brooklyn) Navy Yard; the report pointed out that the yard's pipe-coverers and insulators were exposed to such dust. Two years later, with the Liberty Ship program in high gear, it was proposed to have an outside inspector visit the yard to look for health hazards. Navy brass vetoed the visit. Commander C.S. Stephenson wrote to an Admiral McIntire on March 11, 1941: "I told him [a Mr. Bard] that I had spoken to you and that you had indicated that President Roosevelt thought that this might not be the best policy, due to the fact that they might cause disturbance in the labor element....None of our foundaries [sic] would pass the necessary inspection to obtain workers' compensation insurance from any of the insurance organizations. I doubt if any of our foundaries would be tolerated if the State industrial health people were to make surveys of them."

As federal judge Jack Weinstein put it in a ruling on later litigation: "The Navy, though aware of the hazards posed by asbestos dust, in its urge to build its warships as quickly as possible, did not inform workers of the dangers and neglected to make available protective precautions." Indeed, the judge noted, "The evidence produced indicates that these risks were known to Government officials at least as high as the highest Navy personnel and probably known to the President of the United States."

Unlike servicemen, civilian defense workers have no automatic right to public compensation for losses sustained in the course of serving the nation, nor can they sue the government itself given its sovereign immunity. When former Brooklyn Navy Yard workers began growing ill in considerable numbers they discovered as much, with Judge Weinstein ruling against them on the legalities, even though he said "there's no doubt" in his mind "that the Government is primarily responsible as a factual matter."

By that time trial lawyers had come up with what may be the most lucrative idea to have occurred at that point to any attorneys in American history: They would sue the companies that supplied the asbestos. It didn't matter that it had been the shipyards and not the suppliers whose workplace practices determined the extent to which workers would be exposed to asbestos dust. The lawyers would charge that the supplying companies had not taken adequate steps to warn downstream workers of the risks-despite the fact that it is unlikely that the Navy would have welcomed such warnings, or even necessarily permitted them to reach its workers. Indeed, asbestos requisitioned by the federal government from private companies in generic form for its GSA stockpile was shipped to final workplaces in burlap sacks bearing no warning labels whatsoever. Yet over the course of the litigation, the allegation that manufacturers should have slapped warning labels on asbestos-containing products has been enough to bankrupt dozens of private companies.

Eventually, two and a half million civilians worked in the wartime shipbuilding program, and a high percentage of them were exposed to asbestos in the stiflingly close conditions of ships' interiors under conditions that fell far short of safe industrial practice by the standards of the time, let alone today. Over the years, lawyers on both sides of the asbestos wars have estimated that of claimants who've fallen seriously ill because of exposure to the mineral, half or more may have encountered it while working on ships outfitted for use in World War II.

The consequences did not end with the wartime emergency. As we well know now, sectors of private industry in the postwar 1950s were more careless in their use of asbestos than was justified by the scientific knowledge in place even by the 1930s. It is not hard to imagine one possible reason: Lax habits of industrial hygiene accepted during the war years were perpetuated in the veteran-staffed postwar civilian industry, as neither managers nor workers are likely to have treated with adequate respect a danger they had lately seen treated so lightly.

Not only did the Defense Department never shoulder any moral responsibility for asbestos illness, but it continued to prescribe the use of the substance long after the war had ended. Even decades later, when litigation had broken out and asbestos suppliers were fast fleeing the business, Pentagon procurement officials refused to consider the use of substitutes and turned down a manufacturer's offer to reformulate its product without the mineral.

By now, all the "primary" asbestos manufacturers have long since been forced into bankruptcy by product liability litigation, and the lawyers have moved on to bankrupt dozens of "secondary" defendants that did not see themselves as being in the asbestos business but used the mineral as an ingredient in flooring, wallboard, cement, or countless other building materials. They are moving on to demand billions from "tertiary" defendants whose connection with the substance was yet more remote. Meanwhile, the federal government steadfastly refuses to accept even moral responsibility for its central role in the tragedy.

Government Cigarettes

Then there's tobacco, a subject on which the federal government is, as they say, conflicted. Well into the 1990s, even as it ratcheted up its efforts to hector and badger smokers into quitting, and long after Surgeons General had begun to rail against the nicotine habit, Washington was still a major promoter of the worldwide tobacco trade. Until the Clinton administration finally curtailed the practice, the feds funneled aid to tobacco-related development projects abroad, subsidizing farmers' efforts to export the demon weed, sending diplomats on junkets to pry open markets for U.S.-based cigarette giants, and so forth. In doing so, they were pursuing a great tradition of government entanglement with-and promotion of-the nicotine habit.

Not long after the coffin nail was invented, government tax authorities around the globe began cutting themselves in as partners in its sale-reason enough for them to collaborate in a smooth flow of its product to customers. So vital was the tobacco business as a revenue source, in fact, that until recently it was common for governments to assert a state monopoly over it. Japan, for example, did not end its monopoly until 1985.

In general, state tobacco monopolies have not fallen over themselves in efforts to curtail access to their product on grounds of paternalistic concern for their customers. Some of the world's highest male smoking rates have been observed in countries where profit-making private enterprise was long excluded from the tobacco trade, including China, Russia, Japan, South Korea, and France. Anti-smoking activists in this country sometimes suggest that youngsters would never think of taking up the smoking habit were it not for the wiles of Madison Avenue, and yet-as Reason's Jacob Sullum has noted-the parts of the world historically known for a relatively laissez-faire approach to tobacco promotion, such as the English-speaking countries, actually rank far down the list in male smoking prevalence.

Governments have also participated in the promotion of smoking in a less obvious way, through the management of their armed forces. Historians have observed that soldiers were early and hard devotees of the cigarette habit and did much to spread it into civilian circles. Never in American history did per-capita cigarette production rise as fast as it did during the Second World War-this at a time when expenditures on consumer frills and luxuries generally were being curtailed in drastic fashion.

At first blush, this might look like mere cultural happenstance. After all, military men are known for taking up all sorts of exotic practices frowned on by their parents back home, from jazz dancing to tattoos. Yet there may have been more to the military's generous provision of cigarettes to the troops. During World War I, General Pershing had famously proclaimed that tobacco was as critical an item of war materiel to be rushed to the front as food or ammunition. Were war authorities merely responding to the troops' spontaneous clamor for the commodity, or perhaps trying to prevent their enlisted addicts from having to go cold turkey?

Probably not. As was well recognized from early on, cigarettes confer psychopharmaceutical benefits of a sort long familiar to students cramming for finals: They temporarily focus the powers of concentration, they keep boredom and anxiety at bay, and they serve as a basis for sociability with comrades. These effects happen to have high potential value in counteracting the danger, monotony, and loneliness of combat missions. Even nowadays, with the military having joined civilian authorities in officially disapproving of the habit, service members' smoking rates soar when they are assigned to Iraq and other war zones, as they effectively take steps to self-medicate against the stress of combat. In days past the brass was happy to abet the self-medication. Hence the many subtle and not-so-subtle encouragements for wartime G.I.s to take up the drug, from the inclusion of cigarettes in even non-smokers' rations to the many "smoke-'em-if-you-got-'em" breaks announced by the sergeant.

None of which kept the federal government from filing a lawsuit alleging that the smoking habits of millions of federal dependents-including veterans-were tobacco companies' fault.

Since the state attorneys general settled their lawsuit against the big tobacco companies in 1998, state governments have become more deeply dependent than ever on tobacco revenues: They suffer financial losses if the share of tobacco sales held by "participating" tobacco manufacturers-that is, those in on the deal-drops substantially. One result is that the states are cooperating on measures designed to prop up the financial interests of the participating manufacturers. They have aimed punitive laws and legal actions, for example, against the companies' competitors.

Government Guns

When big-city mayors and some federal officials, notably Clinton-era housing secretary Andrew Cuomo, decided to sign up for a litigation crusade against the firearms industry, they floated two major themes. First, they said, gunmakers and dealers had improperly "flooded" the market with weapons, ignoring indications that some were likely to fall into the hands of bad guys. Second, they had refused to adopt various supposedly promising safety measures intended to reduce the rate of accidental or deliberate gun injury, including "smart gun" technologies, integral trigger locks, and child-proofing devices, among others.

By an amusing irony, the cities that filed suit also happened to serve as some of the nation's biggest suppliers of guns, especially of "personal protection" firearms-that is, the kind intended for use against people rather than critters. The resale of city-owned weaponry-police surplus, as well as guns seized from lawbreakers-is a prized cash cow for city administrations. New Orleans, for example, at the very moment of announcing its first-in-the-country suit against gunmakers, had just finished scoring one of the biggest gun-resale deals ever when it sold through a broker some 7,300 guns, including TEC-9s and various other semiautomatics whose importation and manufacture Congress had banned in 1994. Detroit unloaded a remarkable 13-plus tons of weaponry not long before filing its suit.

The cities' lawyers proceeded to argue that courts should find gun marketers legally culpable for not having instituted a series of safeguards, far over and above the requirements of applicable federal or state law, to make sure guns did not wind up in the hands of inappropriate users. But the cities themselves had followed few if any safeguards of this kind in their own sales. One way of lessening the risk that surplus police guns will fall into criminal hands, for example, is to stipulate that they be resold only to other police departments. But attaching such strings can cut by half the amount that used weapons fetch on the market, so the authorities in New Orleans, Boston, and elsewhere had not seen fit to do so. Were the lawyers' theories to be taken seriously, the cities might have to worry about winding up in court as defendants, not plaintiffs.

Meanwhile, the state of Connecticut, whose Attorney General Richard Blumenthal was a prominent cheerleader of the gun suits, as recently as 1990 had actually been in the business of subsidizing gunmaking, allocating $25 million in state pension money to keep the locally based company Colt in business.

To top it all, in their capacity as major purchasers of guns for police use, the cities had shown very little interest in the safety technologies their lawyers now claimed were so vital-the integral trigger locks, keypad codes, and so forth. Nor had they taken steps to add such safety devices for the protection of civilian repurchasers. Only two of the 7,300 guns that New Orleans sold, for example, were equipped with the safety locks now said to be morally obligatory for conscientious dealers to install.

Government Culpability

It's not clear that there's a single grand moral to be drawn from these examples, or the others that might be added from other fields. It's not that government officials necessarily should be arraigned with having acted in bad faith or wantonly exposed the public to danger; you could argue in their defense that they were creatures of their time, or muddling along with imperfect knowledge, or doing their best to balance complex risks over the short and long term. What are we to make of the historical circumstance that government agencies long ago affirmatively specified the use of lead-based paint in many public buildings, despite dangers known even then of lead ingestion by children? Lead paint was perceived as offering sanitary advantages because it was easier to clean than cheaper kinds of paint. Maybe it seemed like a good bet at the time.

The temptation to assign blame to actions of the past, sometimes the distant past, based on today's up-to-date standards, is an invitation for unfairness, whether the actions being second-guessed are private or official. It's possible to argue that if there were ever a time to cut safety corners in pursuit of a greater goal, the Victory Ship era was that time. By the same token, though, many of the peacetime civilian uses of asbestos-the best known was in fireproofing-were also motivated by noble goals of saving and extending life.

What about sovereign immunity? Currently, government entities do waive their immunity to being sued in a variety of circumstances, including many "routine" sorts of accident settings (road crashes by public vehicles, slip-falls in office lobbies), employment claims, and some others. We certainly shouldn't jump to the conclusion that the government should waive immunity across the board and begin inviting any and all lawsuits. One reason is that the costs of such a waiver would chiefly fall on innocent taxpayers who might land on the hook for many dubious claims along with those that seem morally compelling. Another is that we do not necessarily want the courts to second-guess every policy decision or instance of lenity by a government agency: Imagine if after every air crash lawyers could sue the FAA demanding money on the grounds that it should have been regulating airlines harder in the first place. Even the sad asbestos saga does not settle the question-for which there are decent arguments in both directions-of whether the federal government should chip in to an asbestos-compensation trust fund in recognition of the Navy's role.

What's hard to escape is the feeling that we often judge private risk-creators by vastly more demanding standards than public ones. As we've seen, government generally cannot be held to account for exposing individuals to injurious products even when, as is so common, less lucky private parties are being made to pay damages over the same incidents.

Maybe it's time to discard the caricature still so much favored in some circles, in which profit-making entities wear the black hats and public servants the white. We shouldn't jump to the conclusion that governments necessarily do worse than businesses in preventing risk to the public. But there isn't much evidence that they do better.

Walter Olson (editor@pointoflaw.com) is a senior fellow at the Manhattan Institute and the author of several books, most recently The Rule of Lawyers. His websites are Overlawyered.com and PointOfLaw.com.

You May Already Be a Loser

wo@walterolson.com (Walter Olson) — Mon, 08 Dec 2003 00:00:00 EST

The "CAN-SPAM" Act, which recently sailed through both houses of Congress and is expected to land soon on President Bush's desk, has drawn bitter criticism from many antispam activists because it 1) doesn't ban unsolicited commercial email as such; 2) reserves enforcement for public agencies and internet service providers rather than giving individual email users a right to sue; and above all, 3) would replace and override antispam laws now in effect in 37 states, most notably a new California law which would let individual email users sue for $1,000 over each unsolicited email. One activist group has dubbed the federal bill "the 'YOU-CAN-SPAM' Act because it legalizes spamming instead of banning it."

But whatever CAN-SPAM's other merits, its override of the new California law is well justified. That measure—signed into law two months ago by then-Gov. Gray Davis and set to take effect Jan. 1 unless Congress overrides it—would load punitive burdens on businesses not just in the Golden State but across the country, while shutting down uses of email that are in fact welcome to most recipients. If experience with similar laws is any indication, it would also unleash bounty-hunting lawyers who'd concentrate their efforts not on the fly-by-night spam operations that clog most users' inboxes, but on extracting money from legitimate concerns that weren't intending to break any law.

The trouble with the new California law starts with its broad definition of spam. Most unwanted bulk email is sent blindly to thousands, even millions of recipients. Under the Senate version of CAN-SPAM, as few as 100 emails sent within 24 hours can constitute bulk mailing. Amazingly, California lawmakers set no threshold at all: they explicitly contemplate liability for "a single [uninvited] transmission or delivery to a single recipient". (Think twice before sending an email to someone whose business card you picked up at a convention.) Again unlike the federal version, the California law specifies that its ban on "commercial" solicitations applies to emails from nonprofit entities and to those seeking the uncompensated "gift offer" of goods or services. Implication? It could break the law to send a single uninvited email urging a Fresno or Fontana neighbor to volunteer time or pretzels for a community association's block party.

The only lawful California messages would be those in which the recipient had either requested email regarding goods and services, or had a pre-existing business relationship with the sender. Although the bill's language is vague on the point, a valid permission given to one sender would probably not be transferable to others, even if the address holder intended to give a broad consent at the time. If so, the result would be to shut down sharing of what is known as "permission-based" email lists between marketers, no matter how willingly consumers had given such permissions. The law might also make it unlawful for, say, a trade association planning a convention to let the convention hotel approach its members with room rate information unless it first obtained a fresh consent from each member to do so.

More surprising legal traps are not hard to find. For example, it's common for newspaper websites (including that of the Wall Street Journal) to include a button inviting visitors to "Send this story to a friend". But as one ad executive (Brian Klais of Netconcepts) has pointed out, this arrangement would very likely violate the new California law, because even if the friend has a pre-existing relationship with the recipient, the newspaper, whose server will be used to send the message, doesn't.

What lends urgency to these speculations is the harsh penalty provided by Sacramento lawmakers: $1000 per errant email, payable to individual complainants. There's a million-dollar ceiling per "incident", but each transmission not containing "substantially similar content" would count as a separate incident. So a year's worth of a weekly newsletter would expose a company to $52 million in possible liability, even if no actual recipients had complained along the way. Entrepreneurial lawyers, with which California is well supplied, would be sure to demand class-action status on behalf of all recipients whom a mailer could not prove had given exactly the right kind of consent.

The example of Utah is instructive. Last year the Beehive State became the first to enact a law allowing individual recipients to sue over spam, in this case for a modest $10 per email plus attorneys' fees. Within weeks a flood of more than 1,000 suits had begun, filed by two busy law firms. According to critics, most have been aimed at reputable companies over what were intended as "opt-in" mailings to willing recipients. One enterprising attorney sent out hundreds of demand letters, typically asking $6,500 a pop, to targets including eBay, Chase Manhattan, Eddie Bauer, Disney, Royal Caribbean Cruises, Omaha Steaks, Office Depot, FTD, and Monster.com. Many of these companies were able to produce electronic audit trials to demonstrate that they did in fact have prior relationships with the complaining consumers. At the same time, more than 200 defendants have paid settlements.

Or consider the cottage industry of litigation that continues to thrive over the 1991 federal law against unsolicited faxes, which offers a $500 bounty per errant fax and triple that if the offense is willful. Fines of this magnitude might make sense as a way to provide individual grievants an economic means to vindicate their interests in a small-claims format. But lawyers soon discovered that by rolling claims into one grand class action, they could escalate the sums at stake to bet-your-business levels. A Hooters restaurant franchisee in Georgia filed for bankruptcy after a $12 million verdict over its lunch-coupon participation in six omnibus local fax mailings by a local ad agency to 1,321 recipients, one of them an attorney-turned-plaintiff. Houston lawyers demanded $7 billion from more than seventy local businesses that had advertised in a junk-fax series, including $25 million from one local Mexican restaurant; a judge eventually threw out the case, but by then terrified defendants had paid an estimated $525,000 to be let out. An Atlanta car wash chain is currently battling a demand for $110 million in another fax case. One lawyer calls it "Powerball for the clever."

Many of the defendants in these cases say unwary local managers didn't realize that fax mailings of this sort were no longer legal, or had been assured by an ad agency that all recipients had opted in to a tell-me-about-discount-offers arrangement. The CAN-SPAM law makes a gesture toward reasonableness on this front, assigning liability to an advertiser who "knows, or should have known" that a mailing was wrongful. As usual, the California law is more eager to punish: experts predict that even ordering outside marketers specifically and in writing to obey the California law won't be enough to shield companies from being sued.

Nor can the consequences of California's law be confined somehow within its own borders. There's no way to pick through a list of Hotmail or Yahoo addresses to pick out which ones are used by California residents, accessed from California computers, or billed to a California mailing address—each of these a category covered by the law. (In fact, it's unsafe to assume that an address which looks likely to belong to some other state—say, one with an mit.edu suffix—isn't held by a California resident). In practice, even relatively small businesses elsewhere in the country would run into major liability in California courts.

A spokesman for Calif. Attorney General Bill Lockyer has joined the criticism of the federal bill, claiming it will frustrate the will of the people of California. By contrast, most of the state's lawmakers in Washington, including Democratic Sens. Dianne Feinstein and Barbara Boxer, have been content to sign off on the bill, override and all. In this case, it's clear that Feinstein, Boxer et al. have the better idea.

Courting Stupidity

wo@walterolson.com (Walter Olson) — Wed, 01 Jan 2003 00:00:00 EST

If a drunk driver plows into you from behind at 70 miles an hour while you are stopped at a red light, you are not likely to live long enough to talk to a lawyer about it. However, Patricia Anderson and her passengers were lucky enough to be riding in a 1979 Chevy Malibu, a car much more solidly built than most of its competition. Six victims survived but suffered severe burns because the immense force of the crash had burst the Malibu's gas tank and ignited a fire.

Although the National Highway Traffic Safety Administration did not (and does not) deem the Malibu's gas tank to be defective in placement, design, construction, or any other way, lawyers for Anderson disagreed and proceeded to sue General Motors, saying the fire might have been averted had the company located the tank somewhere other than toward the rear of the Malibu. (They also disagreed on the crash speed, estimating it at 50 mph.) A Los Angeles jury agreed and in 1999 awarded the plaintiffs $4.9 billion -- a figure that exceeded the combined gross domestic product of 11 U.N. member states.

The award in Anderson v. G.M., later reduced to $1.2 billion, caused something of an outcry. The Washington Post said in an editorial that it "makes the tort system into a kind of lottery in which clever trial lawyers and a few victims get very rich at the cost of society's confidence in the justice system." The conduct of the trial had been open to question as well. It turned out that, at the plaintiffs' request, L.A. County Superior Judge Ernest Williams had agreed to exclude from evidence various matters that G.M. wanted to introduce.

Among them were federal government statistics from 20 years of real-world highway experience showing the Malibu to be among the safest cars of its time, with an unusually low crash fatality rate. Nor was the company permitted to introduce crash test data raising safety concerns about the alternative placement of the gas tank that the plaintiffs maintained would be better. Most remarkable of all, Williams had excluded from evidence the fact that the driver of the other car had been drunk (having a blood alcohol concentration of 0.20 percent "several hours later") and had been sent to prison.

As late as the 1980s, jury verdicts higher than, say, $50 million still counted as sensational, but by the end of the century only a billion-dollar verdict could be counted on to merit front-page treatment. Within days of the Los Angeles jury's decision in Anderson v. G.M., a rural California jury voted $290 million over a Ford Bronco rollover accident; like the Chevy Malibu, the Bronco exceeded the federal safety standards of its day. Later, another L.A. jury voted $3 billion in punitive damages in a tobacco case filed by an individual smoker who testified that he'd had no idea the habit was dangerous until congressional hearings in 1994.

Even that paled alongside what happened in a Miami courtroom in July 1999. Following a trial that took two years, a jury deliberated for a mere five hours before deciding that the tobacco industry should pay $145 billion in punitive damages -- a sum more than twice the gross domestic product of New Zealand -- for having behaved badly toward Florida smokers.

One of the plaintiffs, a 44-year-old nurse, said she "had no idea there was anything wrong with cigarettes at all." The verdict, in a class action styled Engle v. R.J. Reynolds Tobacco Company, followed a series of rulings by Miami-Dade Circuit Judge Robert Kaye that were highly favorable to the plaintiffs. The Engle verdict was greeted with a less than respectful reception in much of the press. The Cincinnati Enquirer called it "ridiculous" and "outrageous," adding, "A ruling that completely ignores personal responsibility is a joke." The San Diego Union-Tribune deemed the jury's decision "monstrous" and "outlandish." The Washington Post declared, "The biggest damages here may be to the reputation of the legal system." The Indianapolis Star said the award "falls somewhere between confiscation and robbery." In November 2000, Judge Kaye upheld the verdict, and the tobacco companies announced their intent to appeal.

Defenders of the legal system typically dismiss cases like Anderson and Engle as atypical. And it is true that only a tiny number of juries return from deliberations having approved the kind of numbers too large to fit on a calculator display. Moreover, in many of these cases judges subsequently cut the size of the damage award, though usually to a level that is still stratospheric.

But the mere possibility that an extreme outcome will emerge from the process, and perhaps survive review and appeal, gets factored into negotiations in the majority of cases that are settled before a final verdict. With breast implants, asbestos, and many other mass tort episodes, a rash of arrestingly high verdicts helped educate recalcitrant defendants about the need to pony up substantial settlements.

While the press sometimes refers to these eye-popping awards as "runaway" verdicts, the term is more often than not misleading, since it suggests that juries are racing off madly on a tear of their own. Quite the contrary is usually true: Most "runaway" juries are behaving precisely as one set of lawyers has been carefully coaching and skillfully inciting them to do. They are, for the most part, not running away from anything but running toward a resolution of the case that trial advocates have portrayed to them as reasonable. In seeking to account for exorbitant or unjust verdicts, the most relevant question to ask is usually not, "Why did these jurors behave so irrationally?" but rather, "How did the lawyers manage to portray this outcome as rational?"

Jurymandering

Among the most powerful ways in which American lawyers can shape the outcome of trials is by exercising their rights of juror selection. Typically, they can launch an unlimited number of "for cause" challenges to oust prospective jurors who supposedly cannot approach the case objectively, to which they can add an often substantial number of "peremptory" challenges, which let them dismiss prospective jurors without offering any reasons at all.

The upshot is that jury selection in high-stakes cases has emerged as a protracted and expensive stage of trial in itself, its results often seen by both sides as vital to the outcome. In the O.J. Simpson case, selection alone lasted 10 weeks, which in most countries would be a remarkably long time for an entire murder trial. The Engle tobacco class action in Florida went it one better, with the tweezing and fluffing of the jury pool going on for three months; in the end 800 prospects were sent home in the search for the perfect 18, after having been quizzed on such matters as their reading habits and their views on seemingly unrelated issues such as gun control.

A busy industry of consultants, how-to seminars, and jury selection handbooks offers advice to lawyers on whether or not to boot jurors based on such characteristics as hair style, hobbies, brand of car, and favored kind of reading. The "impartial juror" is just a fiction, declares an ad for a primer that promises to show "how to assemble your winning jury, step-by-step." By the mid-1990s, the jury consulting business was estimated to have passed $200 million in annual revenues, mostly catering to lawyers handling civil cases (that being where the money is).

The whole point of the process, of course, is to engage in discrimination. What makes the hypocrisy complete is that trial lawyers themselves make a very handy living suing when unwary people in other walks of life -- employers, landlords, private clubs -- engage in the same kinds of discrimination. For most of us, explicitly considering the religion, age, or disability status of a job applicant or prospective tenant is strictly against the law, and even inadvertent acts of bias -- resulting from unconscious stereotyping, for instance -- can cost us everything we own in a private lawsuit. But if we ever have to face such a discrimination suit, it will practically count as malpractice when it reaches trial for both sides' lawyers not to engage in age, religion, or disability discrimination during the jury selection phase.

The group stereotyping in the literature advising lawyers on jury selection is anything but unconscious or inadvertent. Women "are often prejudiced against other women they envy, for example, those who are more attractive," is one groaner from The Art of Selecting a Jury, published as recently as 1988. Mexican-American jurors are "passive," and "Orientals...tend to go along with the majority," we learn from a manual in recent use by Texas prosecutors.

Although the U.S. Supreme Court lately has instructed lawyers not to employ race (and even more recently sex) as a factor in jury picking, lawyers continue more or less blatantly to engage in "jurymandering" of both sorts. The edicts are difficult to enforce given that lawyers need offer, in the words of Brandeis University politics professor Jeffrey Abramson, "no justification, no spoken word of explanation, no reason at all beyond a hunch, an intuition" for their peremptory challenges. One can imagine what would happen to the employers or landlords who claimed such a right to base their selection decisions on subjective hunches.

Demography aside, a major goal of the selection process is the removal of any jurors with too strong a base of experience, knowledge, or opinion about the case's subject matter. If a case presents important medical or accounting issues, for example, lawyers on one or both sides probably will want to get rid of jurors with expertise in those areas. Manuals emphasize the importance of excluding potential "opinion leaders" for the other side. "You don't want smart people," says a Philadelphia prosecutor in an old training tape. "[They'll] analyze the hell out of your case." Even before selection begins, busy people often have dodged service, leaving a pool comprised disproportionately of retirees, the unemployed, and workers who can be spared from their jobs.

To make matters worse, a judge in a high-profile case may bounce juror prospects for cause simply because they have followed press reports about the events at issue. In the 1989 trial of Oliver North, for example, the judge flushed out more than 200 potential jurors for knowing too much about the case, which had been on the front pages for months. ("I don't like the news," said the eventual forewoman. "I don't like to watch it. It's depressing.") One panelist, according to

The New York Times, said of North that "she had seen him on television," but added, "It was just like I was focusing on the Three Stooges or something." Another woman, asked what she knew about the Iran-Contra scandal figure, replied, "I don't know, something about overseas." In the 1990 obscenity trial over a Cincinnati museum's exhibition of Robert Mapplethorpe's work, the only prospective juror who regularly visited museums was dismissed for cause, it being felt that actual familiarity with those institutions put an "unnecessary burden" on her objectivity.

Citizens with the "wrong" views can simply be prevented from serving on juries. According to coverage of the Engle trial in the local press, the most frequent reason for dismissing jurors was that they were considered to harbor unacceptable prejudices on the subject of tobacco company liability -- apparently typified by a former smoker of three decades who said, "I just think people are and have been well aware of the detriments of smoking....To come back after the fact, I find that somewhat ridiculous."

Lawyers' Full-Court Press

It is all a strange inversion of the once widely held premise that the courts should draw on jurors who are civically engaged and aware of the events of the day. Juror prospects have historically been drawn from rolls of such groups as registered voters, owners of real property, and literate persons -- all likely, on average, to display a degree of civic awareness exceeding room temperature. (In the really old days, it was considered an advantage in local jurors that they were personally acquainted with the parties or witnesses in the dispute; that way they could take their reputations into account in assigning proper weight to their stories.)

In much-publicized cases a vast army of recruit material -- 1,017 prospects in the Los Angeles murder trial of the Menendez brothers -- must now be screened in search of the few, the proud, the ill-informed. With hundreds of persons sitting for hours filling out lengthy questionnaires -- 79 pages in the Simpson case, 45 pages for the trial of Reginald Denny's attackers -- the process can take on the air of a giant college entrance exam on awareness of current events, albeit with reverse scoring.

The more exhaustive the questionnaires, the more power the lawyers will have to shape the jury. If enough questions are put to a panel of prospects, most will give at least one answer that can be seized on as evidence of their bias -- despite the uncomfortable implication this might leave that most members of the public are not objective enough to serve on juries. Trial lawyers accuse their critics of not trusting juries, but their own practices could scarcely convey greater distrust of jurors as individuals.

The Simpson trial's questionnaire contained 294 queries, including "What was your least favorite subject in school?"; "How important would you say religion is in your life?"; and "Have you ever belonged to Alcoholics Anonymous, the Sierra Club, or the National Rifle Association?" In some cases, lawyers have even been known to hire gumshoes to drive around prospective jurors' homes interviewing neighbors about their private lives -- this from the same profession whose avidity in filing invasion-of-privacy suits is almost as great as its avidity in filing discrimination suits.

One reason pretrial questioning takes so long is that lawyers routinely use it as a way to begin arguing their cases, planting assumptions and factoids that might or might not be admissible at trial. One injury lawyer, quoted in Stephen Adler's 1994 book The Jury, said he planned to linger over the otherwise standard questions about whether prospects had ever been an employee of the defendant company by reciting its subsidiaries one after another: Had they ever worked for this one? That one? "That will make it clear that it's a big corporation," he said. Jurors "must not be aware that an attempt is being made to persuade them" during selection, suggests another how-to book for lawyers. "They are convinced that they have changed their minds by themselves."

Worse, some courts permit lawyers to "get a promise" from jurors: If I show A, will you agree to conclude B? Adler quotes one trial lawyer who got jurors to assure him that they could return a "substantial verdict" if he showed thus-and-such; after getting general assent from the panel, he proceeded to call out individual jurors' names: Were you on board? And you? Each, in turn, meekly assented. "The psychological research is very convincing that getting a promise does, in fact, work," an enthusiastic jury consultant told Adler. "If you give them positions, they adopt them."

Jury selection typically becomes a more unpleasant and intrusive process when lawyers succeed in wresting control of it from the judge. Many state courts allow lawyers to grill juror prospects directly, with judges assuming, at most, a referee role.

Jury selection in state courts symbolizes one of the things foreign visitors tend to find so baffling about American trials, namely the extent to which we permit lawyers, rather than judges, to run them. Elsewhere, judges direct the inquiry, framing issues and ordering the assembling of witnesses and evidence; by contrast, the American judge Marvin Frankel notes that in the U.S., "judges generally act as passive umpires....Lawyers produce, direct, and dominate the trial process." Counsel for each side determines what evidence will be brought forward, by which witnesses, in what order, and which issues will emerge and with what kind of emphasis. If neither side's lawyers see fit to introduce a certain significant piece of evidence, then it stays out of consideration, no matter how much light the judge or jurors think it might shed on the case.

A parade of evils that judges in other countries take pains to exclude can be seen almost routinely in many American courtrooms: inflammatory language and interruptions; "endorsement " by lawyers of their clients' cases; stagey eye rolling when their opponents make points; badgering of witnesses; appeals to sympathy or anger; blatantly rehearsed or coached testimony; comments that mislead, distract, or confuse; opening arguments asserting propositions there is no reasonable expectation of proving; closing arguments that endeavor to slip across propositions unsupported by what has come before -- all are tolerated in some, though far from all, American courtrooms. (Practices differ enormously from one locality to the next and even between different judges in the same locality.)

The opening and closing arguments of a trial, in which lawyers speak directly to jurors, are particularly susceptible to demagoguery. One attorney laments that the final argument stage "has increasingly turned into a quagmire of personal character attacks, impermissible reference to non-record evidence, and blatant pleas to jurors' sympathies and prejudices." Judges sometimes sit by while attorneys mischaracterize what has been said before, compare opponents to murderers or Nazis, insist on logical inferences that are not, in fact, logically obligatory ("If the gloves don't fit, you must acquit "), address jurors by name, and so forth. If a private lawyer pulls out a Bible and starts quoting from it in open court to explain why his opponent should lose, no one from the American Civil Liberties Union will let out a peep.

Why do so many judges in America feel constrained not to take control of trials? One reason, notes George Mason University law professor David Bernstein, is that the remedies available to them may seem inadequate to the task. Declaring a mistrial will usually seem like too drastic a reaction when a lawyer steps over the rhetorical line, yet merely instructing jurors to disregard any inflammatory bits is notoriously feeble. And on many matters -- granting demands for sidebar conferences or more time to question witnesses, for instance -- judges may accurately calculate that they face possible scrutiny from appeals courts if they take a hard line, but relatively little chance of such trouble if they let the lawyer have his way.

Getting the other side's evidence excluded can be as effective a path to victory as introducing prejudicial material of one's own. Such a pattern has turned up in quite a few "big" jury verdicts, starting with Anderson v. G.M., where neither the drunk driver's role in causing the crash nor the car's overall safety record made it into testimony. After managing to get the guilt and imprisonment of the drunk driver excluded, plaintiffs informed the jury that his fault consisted of "five seconds of bad judgment," whereupon the jury allocated to him only 5 percent of the responsibility for the injuries.

Chrysler lost a $262 million verdict, mostly overturned later, over a crash in which a little boy was thrown from a Dodge Caravan. The judge decided that jurors should not be told that the victim had not been wearing his seat belt or that his mother, driving the van, had run a red light. Suzuki lost a $90 million verdict after the trial judge barred evidence that the driver in the crash had attended a wine tasting just before the accident. (The suit was filed by a passenger in the driver's car.) The company got that verdict thrown out, but at the second trial the company was still barred from obtaining medical records on the driver's blood alcohol level.

From much of the advice on jury handling found in the literature, one might conclude that practicing lawyers have a low regard for jurors' acumen. Consultants advise that "logic plays a minimal role" in the courtroom and that the real trick is to identify the jurors' "psychological anchors." A brochure from the San Diego Trial Lawyers Association promotes a video entitled Trying a Case to the Two Minute Mind; aka Trial by Sound Bite. It promises to explain how "to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two-minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror's perception and thought process in the least amount of time." A trial lawyer must -- as prosecutor-turned-author Vincent Bugliosi has written -- "put a bib on the jury and spoon-feed it."

Race in the Courts

No modern story has done more to shake public confidence in trial outcomes than the ultrapublicized 1995 O.J. Simpson trial, in which, after a 133-day, $15 million trial, a Los Angeles jury took just three hours to acquit the former football star. Even within the American legal profession, so given to closing ranks against criticism, few cared to defend the Simpson trial's conduct or outcome. Instead, it was said to have been the fluke result of a never-to-be-repeated confluence of money, celebrity, bungling by the judge and prosecutors, and sheer luck. It was "aberrant," "one of a kind," "in no way typical," and so forth. "The Simpson case is [such] an anomaly that we cannot generalize from it," said a California jury consultant.

Actually, the Simpson acquittal stood in a long tradition: By the 19th century, prominent lawyers in the nation's turbulent cities were already making a name for themselves by winning acquittals for obviously guilty malefactors to the cheers of the mob. Such cases helped put the jury system itself under a cloud, despite its venerable pedigree in Anglo-American law and as a bulwark of liberty in colonial times. "The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury," Mark Twain famously complained. We "swear in juries composed of fools and rascals, because the system rigidly excludes honest men and men of brains."

By the turn of the 20th century, uneasiness over the competence and objectivity of juries was already something of a tradition in itself. Many reformers during the Progressive and New Deal eras distrusted juries for their lack of expertise, their unpredictability, their cumbersomeness (trials are significantly longer and more expensive when juries are part of them), the lack of a written record explaining their decisions, and, of course, their susceptibility to demagoguery and sectional feeling. What did the most to undermine support for the jury during the 20th century was the record of Southern all-white juries, notoriously lawless and hostile to blacks' interests. It took many years after the fall of Jim Crow for Southern juries to lose their reputation as instruments of white prejudice.

Eventually, the expectation that jury outcomes would be racially tinged would subside -- for a while, at least. Yet neither race nor sectionalist sentiment ever actually went away as factors in lawyers' practical courtroom work. By the 1990s, concern about racially tinted verdicts was on the upswing again after a series of high-profile police brutality cases, where such factors had loomed large, as well as reports that prosecutors were finding it hard to obtain convictions on certain types of charges in heavily black cities such as Detroit. A law professor at George Washington University provoked an outcry when he suggested that it might be appropriate for black juries to decline to enforce the law in some prosecutions for nonviolent crimes.

With the Simpson case, the debate reached the front burner. Ironically, one of the most telling facts about the case was that neither the defendant nor anyone else had at first expected his race to play much of a role in what was to come. ("I don't see race," Simpson told a friend. "Race is not an issue." "To put it bluntly," Cochran later explained, "nobody thought of him as black.") But shrewdly perceiving their big chance for a diversionary issue, Simpson's lawyers eventually went to such unsubtle lengths as wearing garments of African kente cloth to court appearances.

When the jury was set to make an on-site visit to the football player's home, Simpson's defense team went so far as to spend a day stripping the walls of their many pictures of white girlfriends, celebrities, and corporate sponsors and replacing them with pictures of Simpson's black relatives, hastily done up as color photocopies at a local Kinko's and framed. In a crowning touch, Simpson's lawyers framed and hung up, in a conspicuous location, one of the most famous images to come out of the civil rights era, Norman Rockwell's 1963 painting of a young black girl being escorted to school by federal marshals.

Though it's a topic that defendants in lawsuits are extremely reluctant to discuss, racial sentiment is looming as a factor against them in more and more civil cases, with help from some in the plaintiffs' bar. Environmental lawsuits, such as those arising from low-exposure tanker spills or pollution in minority neighborhoods, have increasingly scored record-breaking verdicts as lawyers play the "environmental racism" card, arguing that the company would have taken better care of the neighborhood had it been white.

It would be difficult to imagine a mass tort that had less of a connection to race than the Engle case in Florida, since smokers are drawn from all ethnic groups. Yet having obtained a heavily minority jury, plaintiffs' attorney Stanley Rosenblatt proceeded to try the case for a racial payoff, putting experts on the stand who depicted smoking as particularly lethal to blacks and hammering away at the tobacco companies for advertising in black magazines and consciously pursuing black customers. (That black publishers, radio stations, and event promoters had avidly pursued such "targeted marketing," and even sometimes complained of racism when they weren't able to get enough of it, didn't enter the argument.)

Jury Power

Although the litigation lobby likes to carry on as if the jury is in imminent danger of abolition, there is virtually no organized or even disorganized sentiment in this country in favor of such a drastic step. The consensus that juries are here to stay, however, should not imply that it is impossible to hold a public debate about how best to structure their role.

A legal system needs multiple lines of defense against miscarriages of justice, and historically the jury has had few rivals as a way of protecting defendants from overweening official power. But like any other part of government, a jury can pose a danger to liberty when it begins wielding government power in an affirmative way, as when it extends legal liability into new areas or inflicts arbitrary damage awards. A mechanism that works extremely well as a brake may lead to disaster when pressed into service as an accelerator.

One of the areas where juries are widely seen as having the worst difficulties is in the credible and consistent computation of damages. Given that, one reform worth considering would be to keep with the jury the decision of whether defendants are to be held liable but reserve to the judge the calculation of remedies -- just as in most criminal trials the jury resolves the defendant's guilt but the judge alone then decides on sentencing. Even better, perhaps, would be a rule by which judge and jury would separately arrive at damage numbers, and then the verdict would issue at whichever of the two numbers was lower, following the idea that a two-signature check should issue only in the amount for which both parties are willing to feel responsible.

Another set of reforms worth careful consideration would endeavor to give juries more power, rather than less, by rousing them from their artificial passivity. At present juries are subject to numerous constraints that almost seem designed to leave them vulnerable to the forensic skills of those who practice before (and on) them. Usually, for example, they are forbidden to take notes, even while everyone else in the courtroom is scribbling away; nor are they usually supposed to ask or suggest questions, a method well calculated to stifle any intellectual initiative they might show.

The legal instructions on how jurors are to resolve the case are commonly withheld until the last moment, a mode of proceeding one judge has compared with asking jurors to watch a ball game and decide who won without letting them know the rules till play is over. When the guidelines finally do arrive, the judge or his clerk has frequently cast them in legal jargon aimed at withstanding appellate review, which to lay listeners might as well be Serbo-Croatian.

Courts in Arizona and elsewhere recently have experimented with relaxing some of these constraints by letting juries take notes and pose questions to the judge. Much of the legal establishment has greeted these experiments tepidly; many who style themselves as defenders of the jury system may in fact be most comfortable with the institution when it serves as a sort of queen bee, all-powerful in theory but immobilized and force-fed in practice.

The Simpson aftermath led to renewed public calls for judges to take a firmer hand in managing trials, keep questioning on track, curb bullying of witnesses by lawyers, and so forth, which would be all to the good if it happened. It also led to long-overdue calls for reforming the jury selection system, including the abolition or curtailment of peremptory challenges and narrowing of for-cause challenges.

Why does the litigation lobby fight such reforms? Why does it carry on at such length about the jury as a representative institution, then do its best during selection to make it as unrepresentative as it knows how? Why does it endlessly compare the jury box to the ballot box, then turn away from it people it suspects of planning to vote the "wrong" way? These varied positions are not united by the goal of maximizing the power juries get to exert. On closer inspection, they can be seen to share only one common theme: They all arrange matters so as to maximize the power trial lawyers themselves get to exert. Should we be surprised?

Overlawyered & Overgoverned

wo@walterolson.com (Walter Olson) — Thu, 01 Mar 2001 00:00:00 EST

How were we governed, regulated, policed, lawyered, and judged in 2000? Sadly, much the same as in 1999. Here are some of last year's month-by-month "highlights":

January: New York City announced that it did not intend to give back the brand-new $46,000 Ford Explorer it had seized from 34-year-old construction worker Joe Bonilla after his arrest on drunk-driving charges, even though Bonilla had been found not guilty of the charges.

A husband and wife filed a million-dollar lawsuit against the University of Miami School of Medicine for failing to warn them that their daughter might be born with Down Syndrome even though the school knew that they were first cousins to each other, a "high-risk" category that often prompts additional precautionary testing. (The couple's grandparents are also first cousins to each other.)

Serious fire code violations, including lack of smoke alarms in sleeping quarters and an improperly installed firewall, threatened to delay the ribbon-cutting of a $1-million public facility in Charleston, West Virginia. The facility was a fire station.

February: Escaped Bulgarian murderer Mincho Donchev, who lived for 10 years as a "mountain man" burglarizing vacation cabins in the Cascade Mountains of Washington, won a $412,500 settlement in his lawsuit against Snohomish County for excessive force in his arrest. A police dog had mangled Donchev's foot as officers tried to subdue him. At the time of the arrest, Donchev was armed with knives, handguns, and a pronged stick. Donchev's attorney said the money would help ease his client's re-entry into society on his release from prison.

Former Chicago city treasurer Miriam Santos, once a rising political star, "blamed her now-overturned conviction on extortion charges on pre-menstrual syndrome," reported UPI. "I am human and probably the first woman to go to jail for PMSing," she told a news conference.

ABC confirmed that it had paid $933,992 to Mark Sanders, an employee of the Psychic Services Network. A jury endorsed Sanders' complaint that the net-work's newsmagazine PrimeTime Live had harmed his reputation in 1993 when it covertly videotaped him and his colleagues working the phones and aired the resulting tapes in a show designed to depict the call-a-psychic business as "a scam and illegitimate."

March: The Equal Employment Opportunity Commission argued before a federal appeals court that Conrail violated the Americans with Disabilities Act when it denied a dispatcher's job to an employee with a heart condition that can cause him to black out. According to the Detroit News, the agency told the court "that 'while consciousness is obviously necessary to perform' train-dispatcher tasks, 'it is not itself a job function.'...The [job] involves directing trains and taking emergency action to prevent crashes."

Salon reported that New Age alternative medicine advocate Deepak Chopra, who says he won a $1.6 million settlement in his defamation suit against The Weekly Standard a while back, described the legal action as "an act of love" meant to lift the magazine to "a higher state of awareness."

Ed O'Rourke sued Tampa Electric, along with six bars and stores that sold him alcoholic beverages, over a 1996 incident in which he was blasted by 13,000 volts of electricity after breaking into a fenced, gated, and locked utility substation and climbing up a transformer in what he termed a "drunken stupor."

April: Four New Jersey kindergartners were given three-day suspensions after they pretended their fingers were guns and played at shooting each other in a game of cops and robbers. "This is a no-tolerance policy. We're very firm on weapons and threats," said district superintendent William L. Bauer. "Given the climate of our society, we cannot take any of these statements in a light manner."

A Norwich, Connecticut, couple sought $21 million in damages from Publisher's Clearing House, the magazine sweepstakes company, saying that its repeated notices marked "Document of Title" and "official correspondence from the Publisher's Clearing House board of judges" with messages such as "Congratulations! Your recent entry was a winner! And Approved for $21 Million!" convinced them that they would receive the grand prize in person on Super Bowl Sunday. They even got all dressed up to wait for the knock on the door, but it never came, resulting in devastating emotional distress.

Vili Fualaau, now 16, who figured in national headlines because of his affair with his former grade school teacher, Mary Kay Letourneau, is seeking damages from his suburban Seattle school district because it had not prevented the relationship. All parties described that relationship as consensual.

May: Rob Barry, who has sold peanuts for 19 years in the stands at Boston's Fen-way Park, said he may retire in response to an order from management forbidding him from tossing the packaged legumes across rows of seats to buyers. The Ara-mark company, which runs the food concession, is worried about being sued by a bystander hit by a flying goober bag.

The Internal Revenue Service agreed to stop dunning a New Mexico businessman who inadvertently dropped a fractional penny while calculating his tax return and as a result came up one cent short. Counting penalties and interest, the IRS had been trying to extract $286.50 for the one-cent error.

June: A judge reinstated a foreman at an Omaha wastewater treatment plant after he'd been caught on hidden camera repeatedly taking naps at work. The city had not properly disclosed the evidence against him before a pre-termination hearing, said the judge. The worker also claimed that his persistent dozing was the result of a sleep disorder.

Marthe Kent, director of the Occupational Safety and Health Administration's safety standards program and head of the agency's controversial ergonomics initiative, told a trade publication that issuing a regulation "is a thrill; it's a high." She added: "I love it; I absolutely love it. I was born to regulate. I don't know why, but that's very true. So as long as I'm regulating, I'm happy."

A court in Sydney, Australia, awarded the equivalent of $15,600 in compensation to a spa masseuse who said she suffered stress and depression from having to hear clients gripe about their personal problems.

July: Just as the federal government geared up a big campaign to raise the alarm about private Web sites that purportedly invade visitors' privacy by using "cookies" to track their movements, it was revealed that dozens of federal agencies' sites use cookies to track visitors, including visitors seeking information on such sensitive topics as drugs and immigration.

The Washington Post reported that most of the campaign Web sites of politicians who vocally support disabled rights fail to heed even minimal guidelines for disabled accessibility. Among the sites in question were those of George W. Bush, Hillary Clinton, and Ralph Nader.

Disabled activists in New Haven, Connecticut, lodged a complaint against the schooner Amistad, a traveling historical exhibit, saying it was not wheelchair-accessible. The original Amistad was the scene of a famous slave revolt in the mid-1800s and its recreated version is meant to evoke the overcrowding and other inhumane conditions of the slave trade.

August: Police in Davidson, North Carolina, defended the decision to search a woman's car for drugs after an officer noticed that she had in her car a copy of a newspaper with a photo of a marijuana plant. Nothing unlawful was found.

Miami plaintiff's attorney Stanley Rosenblatt, after persuading a jury to vote a $145 billion punitive damage award against major tobacco companies, told Knight-Ridder that other legal issues so absorbed his attention that he wasn't giving any thought to the possible fees he might recover from the action.

September: The Equal Employment Opportunity Commission ruled that belief in odd scientific notions, such as cold fusion or mysterious messages from UFOs, may be entitled to antidiscrimination protection on the same basis as religious belief.

A judge criticized an Indianapolis law firm for billing heirs $1.5 million for administering the estate of a wealthy businessman who died without a will, a sum that included 900 hours worth of work it says it spent calculating those very fees.

October: Owens Corning, the top maker of home insulation, filed for bankruptcy under the pressure of hundreds of thousands of asbestos lawsuits, most filed by workers with no significant illness. The previous year, 12 Democrats on the House Judiciary Committee, including Reps. John Conyers Jr. (Mich.), Howard Berman (Calif.), Zoe Lofgren (Calif.), Maxine Waters (Calif.), and Tammy Baldwin (Wis.) had signed a report declaring that "there is little likelihood that asbestos liability could lead to bankruptcy" for Owens or other big companies. According to the Democrats, "the principal remaining asbestos defendants are not facing any significant threat of bankruptcy." Among other companies they named as in no danger of going broke was Armstrong World Industries, the largest maker of flooring, which proceeded to seek protection from creditors in December.

Zoning authorities in Snydersville, Pennsylvania, sent a violation notice to father and son farmers Jake and Stuart Klingel because they had carved a maze through their cornfield and opened it to the public for a fee.

November: A three-judge panel ruled that Atlantic City, New Jersey, casinos did not violate the federal racketeering law by reshuffling blackjack decks frequently when they knew or suspected that patrons were counting cards, a memory technique that can improve a customer's odds of beating the house as the number of remaining undealt cards declines. Federal Judge Morton Greenberg ruled that the claims "border on the frivolous" because the New Jersey Casino Control Commission specifically authorizes casinos to reshuffle at will, because the players "can avoid any injury simply by walking away from the alleged wrongdoers, the casinos," and because the loss of the chance to make money at a casino's expense can hardly be characterized as "an injury to business or property."

December: Reversing a lower court, the Mississippi Supreme Court ruled that one Robert Shindler had no grounds to sue the Grand Casino Tunica for extra winnings he said he was due, in the court's words, "for a series of mini-baccarat games he played on August 22, 1997. Shindler claims that although he wanted to bet $20,000 per hand, casino personnel would only let him bet $5,000 at a time."

A federal judge ruled that although Tina Bennett had been "belligerent and displayed an unprofessional attitude" at her job, had "difficulty controlling her emotions" and was "incredibly sensitive to criticism," she was nonetheless entitled to sue arguing that these personality traits were caused by severe depression and should have been accommodated under the ADA by her employer, the Unisys Corp.

In Great Britain, the defense ministry announced that the noise to which soldiers are exposed from military brass bands, and likewise the noise from gunfire during infantry training exercises, was in violation of occupational-safety regulations safeguarding workers' hearing. "One solution would be to provide ear protectors during training, but then soldiers couldn't hear their sergeant major giving orders," said a ministry spokesman.

The chief of Britain's military staff, General Sir Charles Guthrie, assailed as "ill-conceived" a proposal floated by figures within British officialdom that the armed services should be compelled to accept disabled recruits for front-line positions.

Meanwhile, British schoolyards are prohibiting children from engaging in skipping and other quaint pastimes such as the game of "conkers," played by throwing chestnuts at classmates. A survey by Keele University found educators were nervous about being sued, and one headmaster declared that if he had his way he would "ban all playtimes, as they are a nightmare."

Stale Claims

wo@walterolson.com (Walter Olson) — Wed, 01 Nov 2000 00:00:00 EST

Last spring the Aetna insurance company made headlines when it confirmed that in the antebellum era it sold policies to slave owners insuring the lives of their human chattels. The company duly issued an apology but declined to make any added financial gesture, pointing out that it already gives millions annually to black charities. That failed to satisfy a young New York lawyer named Deadria Farmer-Paellmann, who had called to public attention the ignoble episode in the company’s history; she said the firm had received "unjust enrichment" from the slave policies and should "share those ill gotten gains."

Farmer-Paellmann is vowing to build the factual basis for lawsuits demanding such restitution from many businesses whose long-ago predecessors in some way benefited from the slave economy. The list may include banks, railroads, and mining companies. She says she hasn’t ruled out going after individuals, either, presumably over their inheritance or purchase of plantation land and similarly tainted property. Conveniently, she herself plans to establish a trust to administer restitution payments on behalf of American blacks. "Just because slavery ended over 100 years ago doesn’t excuse them," she told Mother Jones.

That legal claims over misconduct in the 1850s are beginning to get a respectful hearing is just one more manifestation of a trend in American law that deserves more scrutiny than it has received: the persistent erosion of statutes of limitation and the principles behind them. The tradition of jurisprudence long held that among the law’s most important aims is to make an end to strife, that to do that it’s necessary to require that most claims not pressed with some promptness be extinguished forever, and that the harshness of arbitrary time limits must be balanced against the harshness of leaving people forever insecure in their property, having at any moment to fend off attacks on their title based on events of long ago.

Statutes of limitation and of repose, and their parallel doctrines in other branches of the law, have been around for a very long time. Thus time deadlines combined with adverse possession to help lay to rest uncertainty over land rights. Claims arising under the old system of equity (which grew up alongside common law) had to be pressed diligently or would be subject to the defense of "laches." And a "doctrine of acquiescence" meant that incorrectly drawn political boundaries could be rendered correct by the peaceful passage of time. "The best interests of society require that causes of action should not be deferred an unreasonable time," explained a court in 1871. "This remark is peculiarly applicable to land titles. Nothing so much retards the growth and prosperity of a country as insecurity of titles to real estate. Labor is paralyzed where the enjoyment of its fruits is uncertain; and litigation without limit produces ruinous consequences to individuals."

By the 1960s and ’70s, however, some legal reformers were growing impatient with repose as a primary legal goal. It seemed a formalistic impediment to full justice. Since then, with encouragement from liberal legal academics, time limits on suing have been relaxed or skirted in area after area, to the point where some major sectors of litigation–asbestos and Su-perfund, for example–are now based in no small part on scrutinizing actions defendants took back in the 1930s, ’40s, and ’50s. In contemporary product liability law, when a World War I—vintage machine is involved, it’s not unheard of for courts to go back 80 or 90 years in quest of business guilt. Given that, it doesn’t seem much of a stretch to go back a further 50 or 60 years and haul them to the bar for misdeeds their predecessors committed before the Emancipation Proclamation. And if you’re worried that our courts will slide down the slippery slope until they begin hearing claims dating back to the first years of the Republic, you’re too late: Indian tribes already have succeeded in reviving huge pending land claims that originated in 1795, during the administration of George Washington.

One obvious problem with claims related to the slavery era is that it was perfectly lawful at the time for Aetna to sell the kind of insurance it did. Even if such actions are construed as a "crime against humanity" for which the usual rules of legality are suspended (such as prosecutions of totalitarian officials after the fall of their regimes), the fact remains that the American Civil War was followed by a comprehensive, fundamentally political settlement of who would and would not face confiscation or other legal penalties based on antebellum conduct.

You can see, however, why black reparations activists might get the idea that such political settlements, no matter how secure and final they looked at the time, are subject to perpetual reconsideration: They’ve been watching the stunningly successful campaign over World War II—era reparations. After the end of that war, American policy makers concluded treaties with the former Axis powers intended to resolve with finality questions of who owed what and to cut off the prospect of debilitating litigation. For about 50 years they thought they’d succeeded, until American lawyer-activists suddenly appeared on the front pages demanding separate, added reparations. (Claims against the Swiss were a special case, having in many cases never been settled by treaty.)

The campaign encountered at best mixed success in court. Last year, for example, a federal judge dismissed four class actions against German companies, pointing out in a 78-page opinion that to reopen questions long deemed settled by agreement "would be to express the ultimate lack of respect" for the work of Truman-era U.S. policy makers.

But even rulings like that seemed to make little difference. Armed with the power to impose punishing and one-sided publicity, with threats of sanctions issuing from state and local governments, and with the slender but highly menacing possibility that some judge might allow one of the gigantic class action cases to get to a jury, the reparations movement within a few short years had sprung from obscurity to extract billions from European governments and businesses.

Meanwhile, a California law enacted last year and sponsored by California state Sen. Tom Hayden (D—Los Angeles) extended to 2010 the statute of limitations for suing Japanese and other defendants over World War II misdeeds. U.S. Ambassador to Japan Tom Foley has warned that such legal actions are undercutting American foreign policy and generating a backlash in the island country: "The peace treaty put aside all claims against Japan."

Retroactivity is a frequent evil when courts are invited to look far back in time to establish culpability, since laws change and the actions of a former day will tend to be judged by the standards of the present. In product liability, a field of law which expanded so drastically between 1965 and 1980 that it could almost be said to have been invented from scratch, tobacco companies and many others are being punished for conduct that was plainly lawful by the standards of its era. Paint companies voluntarily discontinued the use of lead-based paint for interior use in the 1950s; not until 1978 did the federal government ban the product. Now the companies are facing massive litigation anyway.

According to industry lawyer Marc Whitehead, quoted in a trade magazine, "Most of the allegations concern conduct in the first quarter or first third of the 20th century." In Massachusetts, state Rep. Marie St. Fleur (D-Boston) has introduced legislation that would expand such litigation yet further by lifting the statute of limitations that requires lawsuits over lead exposure to be filed within a certain number of years of the alleged injury. A similar bill is pending in Rhode Island, where the state government has already filed suit against paint makers and thus is a highly interested party.

Even before the recent liberalizing trends, the law had been peculiarly generous toward the interests of children, commonly suspending the statute of limitations on a youngster’s right to sue until he or she reaches the age of majority, despite the suspense to which this subjects everyone else’s rights. In the late 1980s, however, victim advocates, with help from feminist groups and trial lawyers, began claiming this rule was not liberal enough in cases of alleged child sex abuse. They argued that it was unfair to start running the clock on such a claim even after a victim reached legal adulthood; instead, they maintained, the key moment should be when the victim discovered the offense or its harmful impact. Between 1989 and 1997, more than half the states adopted new rules opening the courthouse doors to child abuse offenses belatedly discovered by victims. As the Bergen County Record reported after New Jersey passed one such law, the change "is meant to help people assaulted as young children, but who repress the memory until they are adults."

The results became a national scandal: Some genuine abuse claims were facilitated, but so were a shocking number of purely imaginary ones. The changes in law had followed close on the heels of a fad among psychotherapists that had helped elicit from thousands of patients false memories of long-ago abuse at the hands of family members, teachers, or complete strangers. These patients would now be given legal encouragement to turn these memories into court cases, though after a lapse of decades it might be hard to prove either way whether Mom, Dad, and Aunt Bev had indeed engaged in multiple rape, Satanic ritual abuse, or midnight animal sacrifice in the town square. Readers of books like Richard Ofshe and Ethan Watters’ Making Monsters (1995) need no further description of the hell such legal proceedings inflicted on innocent parents, condemned not only to estrangement from grown children but to devastating publicity, ruinous legal costs, and not infrequently the threat of actual imprisonment. It’s an episode our legal system will be living down for decades, if not centuries, to come.

As illustrated by the child abuse cases, one of the prime reasons for the disapproval of stale actions had always been the realization that their evidentiary basis will commonly be far less reliable than that of fresh actions. Aside from the drift and fading of memories, written records will often have been discarded, personal witnesses scattered or dead. Then, too, there’s the nagging question of whether the original bad person or entity is still in some sense around to punish. Despite the law’s eagerness to entertain notions of "successor liability," many of us will share Victor Hugo’s doubts, as embodied in the character of Jean Valjean, as to whether the repentant 70-year-old is really the same person for purposes of punishment as the culpable 20-year-old he once was. And when property has been inherited or changed hands many times since the original misdeed–the former slave plantation now turned into a subdivision in suburban Atlanta–the trail of guilt is more attenuated still.

If you doubt it, ask the many Northeastern land owners whose property titles, whether purchased or passed down through generations, have lately been put in question by the revival of old Indian claims. In 1795 and 1807, for example, the state of New York bought from Indian tribes large tracts of what is now the western part of the state, from the Finger Lakes to the shores of Lake Erie. Though the tribes were eager to sell the land, the sales were legally irregular: Federal law, proceeding from the unseemly premise that the Indians were childlike "wards" who could not alienate their property of their own will, required such transactions to be approved by the national government (which they never were). But no one complained at the time. After the better part of two centuries had passed, leaders of the Oneida tribe decided to launch a legal action seeking to upset the old sales as unlawful–even though the land had been occupied for generations by the homes and apple orchards of tens of thousands of Euro-descended inhabitants.

In 1985, by a 5-to-4 margin, the U.S. Supreme Court ruled that proper title to the land never passed and sent the case back for further litigation. The legal questions are admittedly murky, given the peculiarities of Indian law. But Justice John Paul Stevens, speaking for fellow dissenters Warren Burger, William Rehnquist, and Byron White, pointed out that the Oneida elders of the day made no attempt to back out of the sales or cast doubt on their legitimacy, while their successors had subsequently "waited 175 years before bringing suit to avoid a 1795 conveyance that the Tribe freely made, for a valuable consideration. The absence of any evidence of deception, concealment, or interference with the Tribe’s right to assert a claim, together with the societal interests that always underlie statutes of repose–particularly when title to real property is at stake–convince me that this claim is barred by the extraordinary passage of time."

Now ugly tensions are on the rise across the disputed area, with old friendships breaking up, petty vandalism and threats escalating, and local Euro-descended landowners furious at both the tribal leaders and the Clinton Justice Department, which has intervened to back the Indian claims. The value of the disputed homes and farms has plunged; tribal spokesmen say they don’t intend to release the homeowners from their claims unless the state government steps in with a sufficiently generous offer on their behalf. "You have to get the state to get serious about negotiation," explains controversial Oneida leader Ray Halbritter. "The pain of not settling has to be greater than the pain of settling.… This is all about power." Ironically, because of its tax-free casino and cigarette operations, the Oneida tribe is itself much more affluent than its homeowner antagonists; it also donates abundantly to politicians, making it a major political force in the region.

Waiting in the wings is an even more dramatic claim by the Onondagas, to a large tract of land on which sits, among many other things, the city of Syracuse. "It’s in total violation," says the tribe’s chief, referring to the community, New York’s fifth largest with a population of about 160,000.

"Whether or not the lawsuits succeed is almost beside the point," writes New York Times editorialist Brent Staples of the black reparations claims. Defendants surely will take a different view.

All About Erin

wo@walterolson.com (Walter Olson) — Sun, 01 Oct 2000 00:00:00 EDT

It took a few months for the investigative journalists to overtake the Hollywood dream spinners, but by now it’s been pretty well established: What got left out of the blockbuster movie Erin Brockovich (now available at a video store near you) was in many ways juicier than what got put in.

You’re probably familiar with the basic Erin story, as portrayed by the winsome Julia Roberts in a critically acclaimed performance. A spunky, foul-mouthed single mother down on her luck, Erin gets herself hired with no experience for a routine job at a Los Angeles personal injury law firm. Soon she stumbles into evidence that the townspeople of little Hinkley, California, are being poisoned by pollution in the water table originating with giant utility Pacific Gas & Electric, which runs a plant there. Brockovich begins doggedly accumulating evidence, convinces the lawyers in her firm they’ve got a case, and recruits townspeople to sue. Eventually, without admitting guilt, the utility coughs up an impressive $333 million settlement, a record for this kind of case.

Not only did this result provide much-needed financial balm for both the townspeople and our heroine, but all the lawsuit organizing, as the writers at Oprah.com explain, assisted Brockovich in the task of "finding her true self." Although she’d started out in life as a beauty pageant winner, winning the trust of the Hinkley townspeople "enabled Erin to grow and realize that inner beauty is most important."

In fact, the challenge of working on the suit "allowed Erin to productively channel all of her pent-up anger and frustration and realize her purpose in life: helping others." Litigation as a road to inner peace and helping others: It’s certainly an unusual story.

After she spent years helping others, what more appropriate reward for Brockovich than to become the most famous environmental litigator in history, as by now she surely is? Though technically not a lawyer (her title at the California law firm of Masry & Vititoe is "research director"), she’s won more prizes and commendations than just about any regular lawyer you could name, including the Association of Trial Lawyers of America’s Champion of Justice Award, presented last July at its annual convention in Chicago; similar prizes from the California and Santa Clara County trial lawyer groups; commendations from the County of Los Angeles and the California Assembly; and the Court TV "Scales of Justice" Award.

Clearly not unpleased at this nearly universal adulation, Brockovich has embarked on a career of touring the country to organize more toxic tort suits by communities in Pennsylvania, Idaho, and elsewhere.

Just as all this personal growth and feistiness and indomitability were getting to be more than you could stand, along came critics who began sniping at the movie’s account of the Hinkley case. The first wave included such writers as Hudson Institute investigative science journalist Michael Fumento (a contributor to this magazine), ABC 20/20 correspondent John Stossel, and New York Times science writer Gina Kolata. The headline above Kolata’s Times account sums up the main line of critique: "A Hit Movie Is Rated ‘F’ in Science."

Few cases in this country of "disease clusters" linked to chemicals in groundwater have actually panned out upon investigation. Even the famous Woburn, Massachusetts, case dramatized in the book and movie A Civil Action (see "A Woburn FAQ," April 1999) left more questions than answers about whether a suspicious number of childhood leukemia cases had arisen from anything in the water supply.

Only rigorous science can answer such questions as: Are people who drank water from a suspect source sicker than comparable populations elsewhere? If so, do they suffer from a particular, distinctive set of recurring symptoms (such as mercury-induced "Minimata disease" in 1950s Japan), or do they instead complain of a wide assortment of common ailments? Was the chemical exposure heavy, or something measured in parts per million or billion, only slightly above a threshold drawn to err on the side of extreme caution? And if the latter, are claims of injury from minor exposure consistent with what’s known to happen to workers or others who get exposed to much higher concentrations of the same substance?

In the Hinkley case the alleged culprit was a pollutant called chromium-6, or hexavalent chromium. To judge by Fumento’s account, the problems with this theory were much the same as those commonly found in other toxic tort cases: The levels of contamination were orders of magnitude lower than those needed to induce health effects in experimental animals; the lawyers were seeking to blame the chromium for a wide assortment of ailments with no likely common origin; and science has not shown chromium-6 to be a particularly lethal substance when ingested in trace quantities in drinking water. (When inhaled, as in welding fumes, chromium-6 has been shown to cause cancer of the nose and lung, but very little can be inferred about the dangers of one route of exposure from the other.) Studies of persons known to have been exposed to waterborne chromium-6 in Glasgow, Scotland, and elsewhere fail to confirm the Hinkley claims.

Brockovich, to be sure, disputes most of this critique. She told journalist Kathleen Sharp (about whose Salon article we will have more to say in a moment) that she found "hundreds" of references in the scientific literature to a clear-cut pattern of toxicity from chromium-6.

But Sharon Wilbur, a toxicologist at the U.S. Department of Health and Human Services, told Sharp a very different story, namely that "chromium 6 in water doesn’t harm humans. ‘It’s very unlikely that people could die from drinking chromium 6 in the water, even over time,’ she said." Moreover, health studies found that the utility plant’s own workers, who were likely exposed to at least as much pollution as neighbors were, had a life expectancy exceeding the California average.

If it had such good defenses, why did PG&E cough up $333 million to settle the case? Unlike most mass personal injury cases, the Hinkley matter was settled in private arbitration, which means we know less about how it was fought, and which arguments were raised, than we would had it proceeded in conventional litigation. But in her impressive investigation in Salon, Sharp unearths a few reasons why the utility might have ended up with such an unfavorable resolution of the case.

One was that, if you credit allegations from the Brockovich side of the case and other sources, the first set of lawyers PG&E used may have engaged in misconduct, including privacy invasion by hired gumshoes, that would have caused a furor if proven.

Additionally, it later developed that the two L.A. lawyers who teamed with Brockovich’s firm to handle the case, Thomas Girardi and Walter Lack, were on unusually friendly terms with some of the judges in the arbitration, who had joined the arbitration firm JAMS after retiring from the regular California bench. One judge had officiated at Girardi’s second wedding, another had flown in Girardi’s Gulfstream to attend the World Series, and so forth. Laurence Janssen, a partner in the L.A. office of the Washington law firm Steptoe & Johnson, told Sharp: "I became aware that I should absolutely stay away from JAMS or its retired judges when it came to any dealing with Tom Girardi …The common lore imparted to me was that it would be crazy to get in front of any JAMS arbitration with Girardi."

Not long after the case was settled, generating $133 million in lawyers’ fees, Girardi and Lack just happened to invite the three Hinkley case arbitrators to join a week-long Mediterranean cruise for 90 guests, including 11 public and private judges, on a chartered ship. "One judge," reports Sharp, "called it ‘absolutely incredible.’" A luxury yacht floated on azure waters; tuxedoed butlers balanced silver trays of free champagne; young bikini-clad ladies frolicked on the sun-splashed deck, according to retired Judge [William] Schoettler, who was a guest. As another bare-chested judge remarked at the time: ‘This gives decadence a bad name.’"

Naturally, this was all done for strictly educational purposes, under the aegis of a group Girardi and Lack ran called the Foundation for the Enrichment of the Law. Girardi told the Los Angeles Times that the trip included "an extensive professional program," which is supposed to make it OK under ethical rules, but Sharp reports that "retired judge Schoettler can’t recall anyone he knew actually attending a lecture." Eventually, the judges agreed to pay their expenses for the trip; the outcry over the cruise helped spur a California Supreme Court inquiry into the arbitration.

Not a frame of this remarkable epilogue to the case, of course, made it into the movie Erin Brockovich. And the movie was equally misleading, it seems, in depicting a grateful Hinkley populace winning big. In the real world many of the Hinkley clients feel they got the shaft from Brockovich’s firm of Masry & Vititoe, and are now proceeding to sue them. Specifically:

Of the $333 million settlement paid by PG&E, the lawyers kept a handsome 40 percent ($133 million) share, plus another $10 million to cover expenses. The clients say they were short on detail to back up the latter number. Worse, they say Masry, Brockovich, et al. held onto their money for six months after the settlement, a delay that appeared highly irregular to the experts Sharp checked with, while not paying interest or even returning their phone calls (the lawyers say the payments did include interest). Some with large awards also got steered toward certain financial advisers, among them Ed Masry’s son Louis.M
When the payouts eventually came, many clients found the division of spoils mysterious, arbitrary, or worse. Divided among the 650 plaintiffs, the announced $196 million would provide about $300,000 per client. But an outside lawyer who interviewed 81 of the plaintiffs was told they received an average of $152,000, and Sharp reports that many long-term residents with presumably documented medical ailments got payments of $50,000 or $60,000. The allocation among clients was kept secret, which means they couldn’t get an accounting of who received what–gotta protect the privacy of the other plaintiffs, right?

Moreover, writes Sharp, "there was no mention of the criteria, formula or method by which the money would be divided," other than a statement that the amounts would be based on clients’ medical records. Yet some residents say their medical records were never solicited. One elderly, ailing resident "blew up at one of the attorneys, who didn’t like his attitude," according to a fellow townsman, and "got a real bad deal," allotted in the end only $25,000. "Fairly or not," writes Sharp, "some residents say they saw a pattern in the distribution method. ‘If you were buddies with Ed and Erin, you got a lot of money,’ said [client Carol] Smith. ‘Otherwise, forget it.’"
Many clients (as well as members of the press) say they were unable to keep track of the case’s progress as it moved through arbitration. "We had no idea what was going on and weren’t allowed to watch," one plaintiff told Sharp. With help from the plaintiffs’ lawyers, Universal Studios, which made the movie, obtained a copy of the trial transcript–more than many of the actual plaintiffs in the case have yet managed to do.

When Sharp attempted to interview the lawyers on the Brockovich team, the resulting conversations were "short and explosive and terminated abruptly by the lawyers." And when an outside lawyer took an interest in the disgruntled clients’ case, Masry and fellow lawyers at once seized the offensive, suing him for allegedly slandering them and interfering with their business relationship with the clients; this slander suit was filed, then dropped two weeks later, then reinstated, then dropped again.

So if you want to know how to win some of the most coveted prizes and accolades handed out by the American legal establishment, ask Erin Brockovich. She knows all about it.

Confessions of a Macaulay Fan

wo@walterolson.com (Walter Olson) — Tue, 01 Aug 2000 00:00:00 EDT

Is the New Economy leaving behind a trail of exploited workers and uprooted communities? Has an overemphasis on tolerance gone so far as to disadvantage believers in true religion? Is free trade mostly a boon for the few, national sovereignty be damned? Why isn't the government doing more to improve the character and morality of a pleasure-obsessed populace?

Such questions were the talk of London in 1840, which is one reason I'm always urging people to read the historian-essayist-statesman Thomas Babington Macaulay (1800-1859), a figure overdue for rediscovery given the issues that agitate our current politics. Macaulay has a fair claim to being the most influential of the British classical liberals, and few would dispute that he's the most fun to read. Indeed, the extraordinary clarity, vividness, allusiveness, and energy of his writing style, conceded even by his enemies, won him from early on a huge following everywhere English was spoken. His work ran through endless reprints in 19th and early 20th century America--which makes him a great bargain on eBay--and he served as an influence on and model to Mencken, Churchill, and countless other writers.

These days Macaulay seems to survive mostly as a few familiar nuggets from Bartlett's: the one about how the Puritan hated bear-baiting not because it gave pain to the bear but because it gave pleasure to the spectators; the one about how there's no spectacle more ridiculous than the British public in one of its periodic fits of morality; the not especially prescient one about how the American Constitution is all sail and no anchor; the one about how an acre in Middlesex is preferable to a principality in Utopia. All very well in their way, but one-liners make a poor introduction to a writer known for painting on such gigantic canvases: His History of England is among the longest standard works in English, and even the essays can take 10 or 20 pages to warm up before getting to their main theme.

Besides, none of those quotes catch the Whig historian in his most characteristic mood: filled with scorn and wrath at how those in government abuse their power. What propels the reader of his history through the long battle between court and country, between the party of state prerogative and the party of liberty, is the way Macaulay gets you to root for the latter much as one roots for a sports team. But the partisanship is not unrelenting: Constant strokes of characterization, often sharply at cross-purposes with the purely political sympathies, drive home how often folly, knavery, and vice of every sort can be found on the side that turns out to be right in politics, and how often uprightness and intelligence are found on the side that is wrong.

History, Macaulay once wrote, is "made up of the bad actions of extraordinary men," and those who idealize English institutions are likely to squirm at his portraits. The monarchy's occupants, naturally, come off badly, the feckless Stuarts above all. And the law? Even aside from the atrocious proceedings of the Star Chamber and High Commission, the state trials offer little more than a procession of "browbeating judges, packed juries, lying witnesses, clamorous spectators." Sir Edward Coke? A "pedant, bigot and brute," though eventually useful to the cause of liberty. Oxford? Forever squandering its venerable scholarship on devising the most laughably backward defenses for official prerogative.

The churches? "The doctrine which from the very first origin of religious dissensions has been held by bigots of all sects, when condensed into a few words and stripped of rhetorical disguise, is simply this: I am in the right, and you are in the wrong," he observed in one essay. "When you are the stronger, you ought to tolerate me; for it is your duty to tolerate truth. But when I am the stronger I shall persecute you; for it is my duty to persecute error." Each of the rival factions--High Church, Low Church, Catholics--persecuted cruelly when it got to power, and religious tolerance emerged at last in a kind of exhausted tumble when no faction could summon a majority for its designs.

An unabashed believer in economic freedom, Macaulay also makes clear the extent to which commercial and civil liberty grew up intertwined: The battle over arbitrary taxation (including the king's famed "ship-money") accounted for many gains in the struggle against arbitrary government conduct in general, while the fight to restrict unlimited search and seizure owed much to the popular resistance to tariffs and monopolies.

Somehow, freedom grew hardy amid the constant assaults, which is very much the Macaulayan concept of liberty: something built up over long agonies like a mass of scar tissue, abuse by abuse and resistance by resistance, its extent and solidity explainable by which bad officeholder had tried and failed to get away with which encroachment on the public during which reign. No one was less interested than he in a priori speculation about how governments ought to work, or more keenly interested in how from experience and observation they actually had worked. His caustic dismissal of the abstract reasonings of the utilitarian James Mill is perfectly characteristic: "We have here an elaborate treatise on Government, from which, but for one or two passing allusions, it would not appear that the author was aware that any governments actually existed among men."

Macaulay may have taken his relentless empiricism too far for some modern libertarians' tastes, but it stood him in good stead when he turned to one of the great controversies of his own day, the new factory system that had transformed Britain amid an export-driven globalization of its economy. Romantics on both the Jacobin left and the traditionalist right were inclined to view this new economy as a blight on the landscape and the soul alike, reducing workers to cogs and neighbors to strangers, throwing up a new and spiritually rootless elite of uncaring bourgeois, and replacing quondam public spirit and noble national purpose with a mere cash nexus.

In one of the great panoramic set pieces of the English language--the famous chapter from his History on the condition of England in 1685--Macaulay sets out to cure the reader of any notion that the olden times were better: For page upon page he hammers away at the miserableness of the food, the lodgings, the roads, the communications, the sanitation; the badness of governance; the insecurity of person and property; the prevalence of disorder and crime. It was a time, he writes, when "to have a clean shirt once a week was a privilege reserved for the higher class of gentry" and "men died faster in the purest country air than now die in the most pestilential lanes." With eerie accuracy, he predicted that a century or more hence, among the yet better-fed, better-housed, safer, and happier descendants of his readers, it would "be the mode to assert that the increase of wealth and the progress of science have benefited the few at the expense of the many, and to talk of the reign of Queen Victoria as the time when England was truly merry England, when all classes were bound together by brotherly sympathy."

Not infrequently, in their heyday, classical liberals found themselves ranged against a practical alliance between the extreme Tories to their one side and the Jacobins on the other. The campaign for free trade, for example, brought forth noisy counter-demonstrations both from reactionary nationalists and from mobs disrupting public meetings in the name of the working class, prompting this riposte from the historian: "Whenever I hear bigots who are opposed to all reform, and anarchists who are bent on universal destruction, join in the same cry, I feel certain that it is an absurd and mischievous cry; and surely never was there a cry so absurd and mischievous as this cry against cheap loaves." To update the case from the streets of Edinburgh to those of Seattle, it is merely necessary to substitute for the phrase "cheap loaves," "cheap clothes."

Perhaps his favorite target were the individual figures--"Red Tories"--who combined left- and right-wing themes in their loathing of capitalism. Poet laureate Robert Southey, hapless victim of one of Macaulay's most enjoyable polemics, managed to follow a trajectory from far left to far right without spending a moment in actual sympathy with the bourgeois society rising around him. Having cultivated the radical side when it was most in the wrong, he proceeded to do likewise with the reactionaries. Wrote Macaulay: "He has passed from one extreme of political opinion to another, as Satan in Milton went round the globe, contriving constantly to `ride with darkness.'"

By the time he wrote his Colloquies, Southey had homed in on perhaps the most durable critique of capitalism, the aesthetic. Anyone could see its ravages, he said, by standing on a hill and comparing the ivy-clad cottage of the traditional farm laborer with the ugly, uniform brick dwellings of the industrial workers. (His successors today buy newspaper ads that treat it as a rebuke to globalization that there are now cloverleaf interchanges in Cairo and fast-food strips in Bangkok.) Macaulay's response was to pull out rows of vital statistics to demonstrate that the burden of supporting the poor was lowest in the counties where the new manufacturing economy had penetrated furthest, while the death rate had also fallen fastest in those counties.

At the same time, Southey argued fervently that the new industrial regime was far too secular in tone; it now slighted the claims of religion to be the basis of civil government. Macaulay retorted that societies where religious faith has been scanty or missing--he names ancient Athens as an example--have not for that reason found it advisable to dispense with civil government. Given that unbelievers, like everyone else, show a keen concern for not having their goods stolen or homes invaded, "we are at a loss to conceive in what sense religion can be said to be the basis of government, in which religion is not also the basis of the practices of eating, drinking, and lighting fires in cold weather."

Like other Tories, Southey also perceived a decline in national character, a morality gap, which only guidance from on high--"statecraft as soulcraft," we now might say--could hope to rectify: "The maxim, that governments ought to train the people in the way in which they should go, sounds well. [But] can it be laid down as a general rule that the movement of political and religious truth is rather downwards from the government to the people than upwards from the people to the government?" Indeed, "the duties of government would be, as Mr. Southey says that they are, paternal, if a government were necessarily as much superior in wisdom to a people as the most foolish father, for a time, is to the most intelligent child, and if a government loved a people as fathers generally love their children. But there is no reason to believe that a government will have either the paternal warmth of affection or the paternal superiority of intellect."

The practical results of the paternalist view, thought Macaulay, would be meddlesome government on virtually every front. "He [Southey] conceives that the business of the magistrate is not merely to see that the persons and property of the people are secure from attack, but that he ought to be a jack-of-all-trades--architect, engineer, school-master, merchant, theologian, a Lady Bountiful in every parish, a Paul Pry in every house, spying, eavesdropping, relieving, admonishing, spending our money for us, and choosing our opinions for us. His principle is, if we understand it rightly, that no man can do anything as well for himself as his rulers, be they who they may, can do it for him, and that a government approaches nearer and nearer to perfection in proportion as it interferes more and more with the habits and notions of individuals."

There's no space to discuss Macaulay's extensive political career, which is less remembered for the highest positions he held (secretary of war, postmaster-general) than for his success at removing the disabilities inflicted on adherents of minority religions, helping rid the West Indies of the slave trade, and endowing India with a rational criminal code and an educational system based on the English language, an eternal boon to that country whose effects can be traced to this day in such realms as software development. To thank him, skip the monuments and just enjoy his written legacy. "He reads twenty books to write a sentence; he travels a hundred miles to make a line of description," Thackeray put it in an obituary appreciation. "He is always in a storm of revolt and indignation against wrong, craft, tyranny. How he cheers heroic resistance; how he backs and applauds freedom struggling for its own; how he hates scoundrels, ever so victorious and successful; how he recognizes genius, though selfish villains possess it!"