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“Why Lawsuits Are Good for America” by Carl T. Bogus New York: New York University Press; 272 pages; $34.95 “Why Lawsuits Are Good for America” by Carl T. Bogus is intended to support the proposition that product liability litigation — as it now exists in this country and as Bogus expects it to continue to evolve — is a form of regulation essential to spurring the development of safer products. Particularly important in his view is the role of the jury in exercising public authority through what he terms “disciplined democracy.” A second benefit of the present litigation regime is said to be the transfer of seemingly unavoidable costs of certain accidents — his example involves escalators — from “victims” to those such as manufacturers and store owners who “benefit” from such products. Aside from the debunking of “cock-and-bull” stories that have been spread by proponents of tort reform, and a stage-setting discussion of a case involving Upjohn’s Depo-Medrol prescription drug, Bogus reserves the actual argumentation in support of his thesis for the last 80 pages of his book. There, he discusses cases involving automobile design defects, particularly those involving the Bronco II; traces the development of substantive product liability law from MacPherson v. Buick to the present; and looks at what the future may bring. Contrasting the efficacy of litigation in forcing design changes with the ineffectiveness of federal regulatory efforts — due to both industry “capture” of the regulators and judicial hostility to their rule-making efforts — he concludes that litigation is the only reliable check on big business. This is by far the most interesting part of Bogus’ book, but, even assuming the validity of what it does say — a point I leave to others — it fails. It simply does not address issues that must be faced in judging the validity of the proposition that product liability lawsuits are “good for America.” These issues include the social overhead costs — which are considerable — of modern product liability litigation, both in the form of lawyers’ fees and expenses and in the form of such farces of our time as the breast implant cases. Bogus does address, but dismisses as essentially unimportant, the unpredictability of jury verdicts, both in a macro sense and in the differing determinations by different juries of virtually identical cases. The law governing commercial transactions has always placed a higher value on certainty. Those interested in a more balanced and thoughtful — and briefer — assessment of the costs and effects of regulation and litigation may wish to read “Regulation Through Litigation: Assessing the Role of Bounty Hunters and Bureaucrats in the American Regulatory Regime,” available from The Manhattan Institute. The broader negative effects of the ever-increasing litigiousness of our society are well and colorfully articulated in two provocative books by Philip Howard, “The Death of Common Sense” and “The Lost Art of Drawing the Line.” The remainder of “Why Lawsuits Are Good for America” is a specious, and sometimes internally inconsistent, effort to put legislative reform of this area, particularly by Congress, beyond the acceptable bounds of our legal and constitutional history. The basis of this effort is the proposition that the ancient branches of common law — contract, property and torts — are for the courts alone and shouldn’t be tampered with by political bodies. Since “the courts” refers to jury determinations and punitive damages, what Bogus advocates, as he frankly acknowledges, is what might be called “mini-legislation” of standards and penalties subject to judicial supervision; this ad hoc formulation of the law is Bogus’ “disciplined democracy.” “Juries,” he says, “represent the voice of the body politic” and work the will of the people “in the jury box as well” as the ballot box. How this can be called the rule of law is not explained. In Bogus’ wandering explication of his historical thesis, we’re told that, prior to the American Revolution, the “duty of the [English] courts was to help effectuate Parliament’s public policy objectives … [and] to provide fairness and predictability” in private disputes. On the next page, we are told that American judges, not being subject to Parliament, are “government officials” rather than English-style “civil servants,” who “approach the common law with a different sense of confidence and responsibility” than did their English predecessors. After so denigrating the role of the English judges, who first articulated many of the principles on which this republic was founded, Bogus then immediately tells us that “the fabric of [English] law was woven largely by the courts,” which produced a “body of law” that was “far fuller and richer” than statutory law. Two other points warrant mention: First, to take full advantage of his reliance on the sacrosanct position of the common law, Bogus announces that product liability, a type of tort, is no longer such but the fourth great pillar of the common law. Second, the enactment by Congress of statutes modifying or displacing the common-law rules theretofore governing whole areas of the law, as well as displacing common-law adjudication — e.g., the Federal Trade Commission Act, the Federal Arbitration Act and the National Labor Relations Act — is simply not addressed. Apparently these exercises of federal legislative authority were not part of a “War on the Common Law,” Professor Bogus’ phrase for proposed federal products liability legislation. Even more bizarrely, Professor Bogus suggests that the federal antitrust statutes, rather than displacing the common law, have created a new common-law subject. In sum, while both its historical review and its discussion of product liability litigation include interesting vignettes in the life of the law, “Why Lawsuits Are Good for America” fails to make a real contribution to the academic literature on the subject it treats and does not repay the time of the nonacademic reader. It seeks to prove too much but fails to confront serious issues inconvenient to its thesis; in the end it proves little. A final observation: “Why Lawsuits Are Good for America” is a recent book among almost 40 published by New York University Press in a series entitled “Critical America,” edited by Richard Delgado and Jean Stefancic of the University of Colorado. Other titles include “Was Blind, But Now I See: White Race Consciousness and The Law” and “Global Critical Race Feminism: An International Reader.” It is hard to believe that the editors of such a series can be right that its book sales cover the costs. OTHER NEW TITLES “Aaron Burr: Conspiracy to Treason” by Buckner F. Melton Jr. John Wiley & Sons, Inc., $27.95 How did the handsome, charming and brilliant Aaron Burr become one of the most infamous political figures in American history? University of North Carolina, Chapel Hill, professor Buckner Melton Jr. chronicles Burr’s descent from renowned lawyer and war hero to criminal conspirator and killer (in a duel) of Alexander Hamilton. An expert in U.S. constitutional law, Melton gives an accessible account of Burr’s historic treason trial, examining the influence the case and its outcome have had on the American legal system. “What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States” by James F. Simon Simon & Schuster, $26 Starting with Marbury v. Madison, New York law professor James Simon tracks the constitutional confrontation between a president, Thomas Jefferson, and a Supreme Court chief justice, John Marshall, and their competing visions of government. Simon shows how the thrust of their conflict — strict versus loose constructionism — helped shape the American political system. He also offers a richly textured account of compelling, if divergent, personalities. “The Miner’s Canary” by Lani Guinier and Gerald Torres Harvard University Press, $27.95 Just as canaries alerted miners to poisoned air, issues of race can point to social problems that endanger all Americans. From this central metaphor, law professors Guinier (Harvard) and Torres (University of Texas) create a concept, “political race,” to describe how grassroots, cross-racial coalitions can change structures of power by fostering participatory democracy. The pair argue for the concept’s viability through compelling real-life case studies, including those involving Hispanic organizers in a Chicago mayoral race and black workers in a North Carolina pork plant. “The Price of Terror” by Jerry Adler and Allan Gerson Harper Collins, $25.95 Prior to Sept. 11, the 1988 bombing of Pan Am flight 103 over Lockerbie, Scotland — in which 270 people perished — remained the deadliest act of terrorism in American history. This account of the families’ quest for justice — co-authored by the lawyer who spearheaded the case — spans a decade-long struggle. It culminated in statutory changes that allowed the nation of Libya to be sued for damages. John L. Warden is a partner at Sullivan & Cromwell. E-mail: [email protected]

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