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“Lawyers, Lawsuits & Legal Rights: The Battle Over Litigation in American Society” by Thomas F. Burke University of California Press, Berkeley, Calif. 277 pages, $29.95 Has litigation run amok in America? Does it represent the decline of personal responsibility, with rapacious lawyers, individualism and contentiousness triumphing over community and common sense? Has it become a mere “lottery,” where lucky souls can win millions by suing big corporations for their accidents, like spilling hot coffee on themselves? While this view is common, it is dead wrong, claims Thomas F. Burke, an assistant professor at Wellesley College, and author of “Lawyers, Lawsuits & Legal Rights: The Battle Over Litigation in American Society.” This attack on litigation, he believes, results from the efforts of a dedicated corps of image-makers and business interests who misunderstand the role of litigation in America and have conjured a litigation “crisis” to serve their own ends. The truth, according to Burke, is that litigiousness is a touchstone of American society. It arises from the essence of our constitutional tradition. The preference for litigation in America reflects the fundamental political values of our society. It is a uniquely American avenue for achieving social justice. To prove his point, Burke contrasts the American tradition of problem-solving through litigation with the European system of bureaucracies. Bureaucracies, he posits, are centralized hierarchies. In the bureaucratic model, government policies are implemented on high by civil servants who are following fixed rules laid down by superiors. The American judicial system, by contrast, is based on the model of “adversarial legalism,” in which issues are organized as formal disputes between parties. The parties have the burden of invoking and enforcing the rules. The decision-makers are not tightly bound to a centralized higher authority. The rules themselves are constantly in dispute and evolving. In the course of arguing how the rules should be enforced, the parties also argue about what the rules should be. Public policy in an adversarial legal system is decentralized, privatized, fluid and unpredictable. Thus, as long as Americans prefer decentralized and diffuse government authority to concentrated power, argues Burke, Americans and their policy makers will prefer litigation over creating new bureaucracies. In illustrating his theory, Burke chooses recent political battles over “replacement reforms” — that is, efforts to eliminate whole categories of litigation and replace them with some alternative bureaucratic mechanism, like the 9/11 victims compensation act, no-fault automobile insurance or workers’ compensation. These replacement efforts force policy makers to compare the costs and benefits of litigious policies to alternative mechanisms, like bureaucracies, designed to achieve similar goals. “The study of replacement politics,” writes Burke, “can spotlight what makes the mechanism of litigation so enticing to American policy makers and what makes alternatives, especially the bureaucratic approaches used in other nations, less alluring.” The three replacement reforms Burke spotlights are the battles over the Americans with Disabilities Act, no-fault auto insurance in California and a federal Vaccine Injury Compensation Program. These case studies show that replacing a species of litigation with an alternative mechanism depends upon a political entrepreneur who forges an alliance between plaintiff and defendants; a crisis in production; and the significance in unpredictability as a rallying point for the anti-litigation reformers. But by no means is every effort to replace litigation with a bureaucratic mechanism successful. The distrust of expanding government is one obvious reason. Another reason is the great advantages to policy makers of litigious policies. The main advantages policy makers reap from litigation are: (1) insulation; (2) cost-shifting; and (3) control. First, litigation is insulated from shifts in political control in a way that bureaucracies are not. When enforcement is entrusted to a bureaucracy, one way that an opposition to a policy can halt the enforcement of a law is by a political attack on the enforcement agency. Interest groups opposing enforcement can pressure the executive or legislative branch, which can then pressure the agency, and the agency may then redirect enforcement of the law. Courts, however, are relatively independent of the political pressures that affect agencies. Moreover, courts are relatively unaccountable for their decisions. Voters unhappy with a particular court decision cannot easily trace responsibility for it back to choices originally made by legislators and are in a poor position to demand policy change. Secondly, litigious policies can shift costs. They offer policy makers the tantalizing possibility of something for nothing. Litigation is mainly funded by the parties who do the litigating, with only minor costs to the government. Litigious policies have the great virtue of addressing social problems without tapping the budget. No wonder, then, that litigation-promoting policies multiply. Thirdly, policy makers are also attracted to litigious policies as a way to gain control over the actions of states and localities. Giving victims the right to sue in court gives the victims the ability to exercise local control over the wrongdoers. Finally, litigation fits our constitutional structure. Americans demand solutions to social problems while the basic structure of the American government — with its federalism, separation of powers and an independent judiciary — tends to thwart activism. Litigious policies appeal to activists because they are a way of addressing social problems without seeming to augment the power of the state and they offer a means of overcoming the barriers to activist government posed by the structures of the Constitution. If Burke is correct, any anti-litigation efforts certainly face an uphill battle. The American polity favors diffused governmental authority, so problem-solving through litigation, as opposed to that via bureaucracies, accurately reflects their preferences. Policy makers prefer litigation because their policies are then insulated from changes in political control and hide the actual costs by shifting them to private parties. Litigation is a strange animal, then, favored by the people for one reason and by the politicians for another. But in the end, this is going to be a very hard coalition for anti-litigation advocates to beat. Robert Monahan is an associate at New York’s Kornstein Veisz Wexler & Pollard.

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