Shyster Heaven.("The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law")(Book Review)

The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law, by Walter K. Olson (St. Martin's Press, 352 pp., $25.95)

Responsibility used to be the hallmark of American freedom. Act as you wish, but accept the consequences: Smoke, get cancer. Eat, get fat. Fall down drunk, get hurt. Just don't act surprised -- and certainly don't blame anyone else.

No longer. Today the hallmark of American freedom is litigation. Act as you wish, but make sure someone else suffers the consequences. Indeed, America's liability system has become the international standard of what not to do. Walter K. Olson, a senior fellow at the Manhattan Institute, explores how the U.S. has long been hospitable to the litigious: "Even fifty years ago America was known as the land of the speculative or 'long-shot' legal case, in which an injury could come to seem a lottery ticket collectible from the nearest deep-pocket defendant."

Still, the problem back then seemed more episodic than systemic; people were usually expected to be responsible for their actions. Whole classes of lawsuits were almost unthinkable: What would-be burglar, for instance, would have sued the school system after falling through a skylight? Explains Olson: "Until sometime around 1970, it had long been taken more or less as a given that in the U.S. legal system, as in others, litigation was something to be discouraged, a destructive and costly last resort, certainly not the first line of response to ordinary social problems."

The Rule of Lawyers is the tale of how that changed, and it's not a story for the faint of heart. Olson begins the book by looking back on an amazingly prescient essay written in 1976 by Beverly C. Moore Jr., a onetime Naderite lawyer, and Fred Harris, left-wing senator from Oklahoma and failed presidential candidate. That they would call for greater use of class-action suits should come as no surprise; but they did suggest a rather breathtaking new range of causes. The tobacco and alcohol industries, they wrote, should be sued for the harm of their products; food producers should be held responsible for obesity, tooth decay, and diabetes; drug companies should pay for overdoses; automakers should be sued for accidents, and should also -- along with real-estate developers -- cover the cost of "urban congestion." And much more.

Moore and Harris were not troubled by the fact that companies would be paying for things that were not remotely their fault in any traditional understanding of negligence law. The purpose was to impose costs on business to change their behavior. The big problem then, the authors noted, was that "most victims are not even aware that they have been injured." They are now.

Moore and Harris published their article in the midst of far-reaching changes in both the substantive law and procedural rules of litigation. Product-liability law became more expansive, and class actions became easier to file. A host of barriers to suits -- such as limitations on discovery, pleading requirements, and jurisdiction restrictions -- fell. The result, explains Olson, was to "further empower lawyers themselves, who could now demand a great deal more money, menace opponents with far more effective weaponry than before, and presume to speak on behalf of vast groups within the American population, secure in the knowledge that their supposed constituents would not be in a position to fire them."