Litigation: The death of democracy

Malcolm Wallop
September 25, 2002

America's constitutional representative democracy is under attack. This plot is not being carried out by terrorists or an opposing army, but by greedy and power hungry lawyers who seek to over throw our constitutional representative democracy and install in its place a system governance by litigation in which lawyers rule supreme. With the assistance and backing of trial lawyers, small and extreme groups are finding it increasingly easy to bypass and subvert the democratic process and impose their agenda on the rest of society by abusing litigation and manipulating the courts.

For example, for years, a small number political extremists have proposed everything from banning fatty foods to imposing heavy taxes on unhealthy foods. According to this proposals, green beans and carrots would received a favored tax treatment, but bacon and hamburgers and french fries would all have a very high tax placed on them. These proposals went nowhere in the halls of Congress and in the state legislatures. Why? Because these anti-fat proposals are nutty and the public knows it. Legislators stupid enough to vote for such foolishness would likely lose reelection in all but the most extreme districts. But in a lawsuit, these absurd ideas can take wings and get off the ground ­ all it takes is one greedy trial lawyer and one judge who is either stupid or has a political agenda to push. The protections afforded by representative democracy are effectively repealed.

One of the turning points for this troubling development of lawyer run governance came in 1998, when state governments obtained a $246 billion settlement from the tobacco industry. To gain an advantage in the litigation and force the tobacco industry to settle, state governments changed centuries of legal precedent and dramatically loosened age-old checks on the abuse of power. The federal government, seeing the huge sums of money to be obtained, filed a copycat case against the tobacco industry, contravening its own laws in the process and contradicting its earlier public statements that the federal government had no case under the law or the facts.

Some are willing to overlook the lawlessness of the tobacco litigation because it had the effect of punishing the unpopular tobacco companies. However, our justice system is supposed to work for everyone, not just the popular. One of the most sacred things in our constitutional representative democracy is the defense of the unpopular citizen. Popular folks generally do not need constitutional protections ­ their popularity is their protection. The whole point of the Bill of Rights was to protect the unpopular citizen from an overreaching government. Today, there is a long list of companies and industries that are deemed as not worthy of fair treatment. But this is a dangerous attitude and a perilous precedent. What and who are unpopular changes. You could be next.

We are a nation that claims to follow a rule of law. In a representative democracy, the people are king. The people elect representatives who make the laws and executives (presidents and governors) who carry out the laws. The courts are not elected and do not represent the will of the people. On the federal level, judges have a life term. Thus, the courts are not given the authority to make law. The courts simply adjudicate disputes under the law.

But in recent years, trial lawyers with the assistance of opinion leaders and some rogue judges, are making, enforcing and adjudicating law without ordinary citizens ever having a chance to address the issues at the ballot box. As a result, legislative proposals that had no real support in the halls of our democratically elected legislatures, eventually find thier way into the law thanks to the relentless efforts of trial lawyers who abuse litigation and our court system to achieve their political and financial aims.

For trial lawyers of this ilk, its all about money. They simply do not care what costs they impose on regular folks or on our society.

Stacking the Deck Against Due Process

For years, smokers tried to sue cigarette manufacturers to pay for their medical bills. But they never got away with it ­ and for good reason. People choose to smoke and they know the risks. Just like people choose to eat too much and know the risks. In a free society, we have the right to make a host of choices. But we must be responsible for our choices.

But this common sense came to an end in 1998. Several states made deals with trial lawyers, throwing out legal precedent and applying new laws retroactively in order to ensure a win against the tobacco companies. The smell of billions of dollars in new revenue was too much to resist for many state governments.

Maryland legislators, for example, rewrote the law after the state filed a lawsuit against the tobacco companies. The changes in the law were designed to guarantee Maryland victory and force tobacco companies to pay the state billions of dollars in an out of court settlement rather than risk losing in court. The trial lawyer Maryland hired to handle its lawsuit, Peter Angelos, was so convinced the the changed law would guarantee him victory that he promised to cut his legal fee in half ­ down from $1.1 billion to $500 million ­ if the state would change the law to favor him and the lawsuit. The state obliged. The tobacco companies realized they had no chance at a fair trial, so they settled and paid the state billions of dollars. All went as planned, except that Mr. Angelos demanded the full legal fee of $1.1 billion anyhow.

It's all about the money. The law can be a casualty, constitutional principles can be discarded, and fairness can be cast aside as long as they get their money.

Checks on our legal system are under attack and are steadily eroding, making it possible to win cases that defy rationality. This is why we hear about obese people suing fast food restaurants for providing tasty super-sized french fries. Sure its nuts. But, if just one judge will see things thier way, they get a huge payday. And just because a lawsuit takes place in one state does not mean the verdict is limited to that state. A case in a single courtroom, in a single jurisdiction, with a single judge, is all it takes to force an industry to pay billions in out-of-court settlements and change its business practices everywhere in the United States. Shouldn't these sorts of major public policy decisions be made by our democratically elected representatives?

Yet in recent years, many of these decisions have effectively been made by trial lawyers whose influence in the political system has grown to such an extent that age-old legal institutions, which had acted as a restraint on their objectives, have begun to break down. The more cases they won, the wealthier and more politically active they become, enabling them to ram through even more lawyer-friendly legislation. Among those changes, it has become easier to "forum shop," allowing lawyers to shop around for judges or jurisdictions sympathetic to their agendas. It is also easier to allow testimony from hired "experts" brought in to support those agendas, even if those witnesses are well outside the accepted standards of their field. Moreover, the rise of class action lawsuits enable lawyers to sue with no real clients. And now "negligence" means failing to prevent any conceivable bodily harm ­ regardless of how many precautions were taken or what responsibility the plaintiff may actually bear.

In 1994, the state of Florida went so far as to change the law to prohibit defendants from presenting certain evidence and legal arguments, making it all but impossible to defend themselves. For the tobacco case, Florida required that defendants post a bond of 150 percent of the lower court judgment before they could appeal. The bond amount was so cost prohibitive that the right to an appeal was effectively denied.

Stealth Taxation

Much of this out-of-control litigation problem is fueled by the states' voracious appetites for more and more of our money. Americans are already taxed to the hilt so new taxes are not very popular. Thus when politicians go on pork spending sprees, they are often afraid to raise taxes any higher to pay for their excesses. Therefore, free spending state governments are opting for an alternative revenue source ­ shaking down deep-pocketed industries through litigation.

Taxation through litigation is now a favorite way for states to cover large budget deficits. For example, it is no coincidence that the states that persist in suing Microsoft all have large projected budget deficits. Despite the fact that the vast majority of states either settled their claims along with the federal government or opted not to get involved in the first place, a few states spend taxpayer money pursuing continued litigation in hopes of a big payday. It's all about money.

This sort of thing is much easier to do when you can demonize an industry and convince the public that the company or industry being attacked is evil. The purpose of the demonization strategy is two-fold: (i) to turn public opinion against the company or industry so that the public will tolerate the abusive legal tactics used in the shakedown, and (ii) to give the appearance that those doing the shakedown are not common thugs or thieves, but are serving the public interest and doing some greater societal good. Instrumental in this demonization strategy is an alliance of extreme activists groups, the media, trial lawyers, and government officials, all working to whip up public scorn against certain industries or companies. With strong political and public opinion winds against them, these industries hardly have a chance in the courtroom, regardless of how solid their legal positions are.

An equally troubling development is that federal government has gotten in on the game. After realizing it lost out on getting any of the states¹ tobacco settlement money, the Clinton Justice Department sued the industry on its own. In doing so, it ignored the law and its own previous congressional testimony. In 1997, the Justice Department testified before Congress that the law did not permit it to sue the tobacco industry to pay for Medicare expenses. But in 1999 the Justice Department filed a case anyway in hopes of a big settlement and another big payday. It's all about money.

Among the federal government¹s trumped-up charges against tobacco companies was "racketeering" ­ a law passed to stop organized crime. What had the tobacco companies done that resembled the mob, one might ask. They sent out press releases in which they questioned government data on health risks and addictions. In the administration¹s eyes, questioning their data constituted "mail fraud," punishable under racketeering laws meant for the mob. A similar posting on a company web site was deemed "wire fraud." In essence, the Clinton administration¹s definition of racketeering and organized crime was simply making statements with which the administration disagreed.

It is increasingly easy to apply laws arbitrarily ­ to use the law to selectively target one group or individual for financial or political reasons. This is a phenomenon commonplace in many third world countries and dictatorships. Such corruption should not be commonplace in America.

Everyone Is A Potential Target

The successful lawsuit against the tobacco industry proved that it is possible to cripple any industry by litigation. Trial lawyers¹ jobs are easier, of course, when that industry manufactures a product disliked by many Americans. But an industry does not even have to be widely hated to be sued. Latex glove makers are not disliked by the American public. Yet, one state attorney general says he wants to begin the whole litigation process to bear on the latex glove industry. Another target is manufacturers of lead-based paint, even though lead paint has not been manufactured in over 50 years and was voluntarily discontinued as soon as it was known that it could be harmful when not properly maintained.

Others ripe for getting sued include makers of candy, fast food, high fat foods, dairy products, and beef, since, like tobacco, they all "contribute to federal health care expenditures." A Yale professor claims "there is no difference between Ronald McDonald and Joe Camel." The Physicians Committee for Responsible Medicine is calling for a class-action suit against the meat industry, claiming "meat consumption is just as dangerous to public health as tobacco use."

Breweries and wineries are potential targets as well. They could be forced to pay for medical treatment and other damages to people injured or killed by drunk drivers. Personal responsibility no longer matters that much. Car makers are vulnerable, too. Some argue that sports cars and cars with powerful engines are defective by design because drivers are tempted to drive dangerously. Thus, they argue that car makers should pay the costs of damages caused by recklessly driven automobiles. Again, the responsibility and choices of the driver are ignored. Its all about the shakedown and the money.

A society that allows smokers who know what they are doing to shift the blame to others, will also eventually allow overweight people to sue fast food restaurants for offering super-sized fries. This is why precedent matters.

Billions of Dollars in Blood Money

The harm being inflicted on our democratic institutions is troubling enough. But there is another sinister element in all of this ­ extortion. In the underworld, bad guys threaten people, forcing them to hand over their money or suffer the consequences. But why be a mobster when you can go to law school and do the same legally? Simply notify a large company that you are suing them, talk them down to the investment world so their stock prices drop, and promise the company that if they settle and pay you large sums, you will leave them alone and even talk their stock back up in the investment world. This sort of work pays well, very well. And that is what's important ­ the money.

A new class of multimillionaires has come into existence. Traditionally, people get rich by creating something of value and selling it. Now, we have a class of people who get rich by producing nothing ­ they simply extort. It is legalized theft. Apart from the questionable ethics involved, it is simply bad for the economy and every single American pays the price. Every dollar that companies or individuals have to forfeit to greedy lawyers means one less dollar for productive investment, one less dollar to pay hardworking wage earners, one less dollar for job creation.

Moreover, the poor and middle class are often stuck with the bill. Who is ultimately paying for the $246 billion tobacco settlement over the next 25 years? It is the 25 percent of Americans who smoke. More than half of them make under $30,000 a year.

Meanwhile, lawyers are using their newfound wealth to fuel the vicious circle, contributing heavily to like-minded judges, state attorneys general, Members of Congress, and others, who enact even more lawyer-friendly laws and stifle any attempt at reform.

Freedom in Danger

Some folks simply do not care what happens to big corporations like the tobacco companies, auto makers, chemical and drug companies, gun manufacturers, and fast food chains. But it is the broader picture that is important here. Unless we stop this cancer in its tracks now, similar things will happen to other businesses, individuals, and groups. We are slowly surrendering our constitutional representative democracy to a system of lawyer run governance.

Our forefathers pledged their lives, fortunes, and sacred honor to obtain freedom and throw off the shackles and unjust burdens of an unelected, life-tenured king. Did General Washington's army make those sacrifices and win a glorious victory, only to have trial lawyers and unelected, life tenured judges take the king's place, sack the rule of law, and turn our representative democracy into governance by litigation?

We must preserve our constitutional heritage and right to representative democracy. To do less than this would be to stand idly by and watch the end of the greatest revolution in freedom that the world has ever known.

Former Senator Malcolm Wallop is chairman and founder of Frontiers of Freedom, a member group.
Contact Malcolm Wallop
©2002 Frontiers of Freedom

BACK The Law and Litigation

TYSK eagle

News Depts Articles Library
Lite Stuff Links Credits Home



26 sep 2002