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Thomas Geoghegan’s Which Side Are You On?, published in 1991, continues to be one of my favorite books. Through the story of his career as a labor lawyer, Geoghegan described the decline of the labor movement in the United States. Geoghegan displayed extraordinary talent as a raconteur in that book, telling stories in such a distinctive voice — one that combined self-deprecation, candor, and astute attention to detail — that it didn’t matter that parts of the book were steeped in nostalgia or that his occasional suggestion for reform was not accompanied by rigorous research. Geoghegan has written several books since then, but none has been as compelling. Alas, that continues to be true with his latest book, See You in Court: How the Right Made America a Lawsuit Nation. Although Geoghegan occasionally tells stories, he is really a pamphleteer in this book. Geoghegan’s primary campaign concerns the legal system. In his account, we have become a nation of tort litigants. This observation is not new — indeed, it’s the ongoing lament of a number of conservative commentators. (Exhibit A for Geoghegan is Philip K. Howard’s The Death of Common Sense, which decries America’s increasing reliance upon litigation and regulation to govern daily life. Another example is the demonization of presidential candidate John Edwards for his prior work as a trial lawyer.) Geoghegan disputes the conservative explanation that the plaintiffs bar is to blame for the litigiousness of American society. He argues that a combination of developments — the most important being the decline of unions — has directed workers with grievances to the legal system. Without the support of a union and the streamlined process for resolving disputes required under collective bargaining agreements, employees are left to fend for themselves. The employee’s journey through the legal system is unlikely to vindicate her rights and certainly will not be pleasant. As a matter of procedure, many cases are routed to arbitration, where the deck is stacked in favor of the company. In the cases that remain in the civil justice system, the pretrial discovery process is expensive and brings out the worst in litigants. Finally, should a case actually go to trial, who can predict what the jury or judge will do? It’s a recipe for frustration and uncertainty. As a matter of substance, Geoghegan argues, the current legal regime is one in which at-will employees do not have contract rights, courts have scaled back on the protections of trust law, and administrative agencies are not taken seriously. So all too often the only avenue for redress after one has been wronged in the workplace is to sue in tort. Paradoxically, Geoghegan notes, the changes in the legal regime governing the workplace made to promote efficiency in fact have generated more lawsuits and increased litigation costs. Although much of Geoghegan’s disappointment with the legal system is familiar (at least to a civil procedure teacher such as myself), he demonstrates clearly how the flaws in the system are especially disadvantageous to employees. Geoghegan includes a second polemic in See You in Court. This campaign is directed against the political system — in particular, the way it frustrates majority rule. Geoghegan debunks the notion that the United States is a representative democracy. As he explains, the Senate unfairly distributes power from larger states to smaller ones by giving each state two senators, and this imbalance is reinforced by the continued availability of the filibuster. The gerrymandered House of Representatives is not much better in providing meaningful representation. And the Electoral College through which we select the president and vice president? Bush v. Gore should have led to its abolition — except that the Constitution is virtually impossible to amend in this day and age. Cumulatively, it’s not a pretty picture. The prevailing moods, according to Geoghegan, are political apathy, economic anxiety, and distrust of the rule of law. It is difficult to verify the accuracy of his account — Geoghegan only occasionally cites data and has not done any reporting to see how widely held his views are, and my review copy did not include footnotes or even a bibliography. Nevertheless, even if the arguments in See You in Court lack sociological rigor, they demonstrate that Geoghegan is a capable pamphleteer. He writes with passion and clarity, and his cases against the legal system and the political system demonstrate eminent common sense. Still, after finishing this book, I must confess that I still am more interested in his stories about the mill workers on the South Side of Chicago than his civics lessons about Washington, D.C.
Rodger Citron is an assistant professor of law at Touro Law Center in Central Islip, N.Y.

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