Why Lawsuits Are Good for America : Disciplined Democracy, Big Business, and the Common Law

by Bogus, Carl T.

• ISBN13: 9780814799161
• ISBN10: 0814799167
• Edition: Revised
• Format: Paperback
• Copyright: 2003-07-01
• Publisher: New York University Press

Summary

Judging by the frequency with which it makes an appearance in television news shows and late night stand up routines, the frivolous lawsuit has become part and parcel of our national culture. A woman sues McDonald's because she was scalded when she spilled her coffee. Thousands file lawsuits claiming they were injured by Agent Orange, silicone breast implants, or Bendectin although scientists report these substances do not cause the diseases in question. The United States, conventional wisdom has it, is a hyperlitigious society, propelled by avaricious lawyers, harebrained judges, and runaway juries. Lawsuits waste money and time and, moreover, many are simply groundless.Carl T. Bogus is not so sure. InWhy Lawsuits Are Good for America, Bogus argues that common law works far better than commonly understood. Indeed, Bogus contends that while the system can and occasionally does produce "wrong" results, it is very difficult for it to make flatly irrational decisions. Blending history, theory, empirical data, and colorful case studies, Bogus explains why the common law, rather than being outdated, may be more necessary than ever.As Bogus sees it, the common law is an essential adjunct to governmental regulation--essential, in part, because it is not as easily manipulated by big business. Meanwhile, big business has launched an all out war on the common law. "Tort reform"--measures designed to make more difficult for individuals to sue corporations--one of the ten proposals in the Republican Contract With America, and George W. Bush's first major initiative as Governor of Texas. And much of what we have come to believe about the system comes from a coordinated propaganda effort by big business and its allies.Bogus makes a compelling case for the necessity of safeguarding the system from current assaults.Why Lawsuits Are Good for Americaprovides broad historical overviews of the development of American common law, torts, products liability, as well as fresh and provocative arguments about the role of the system of "disciplined democracy" in the twenty-first century.

Table of Contents

Acknowledgments	xi
Introduction	1	(5)
1 Why Tell Tales?	6	(16)
Danforth's Tale	6	(5)
Proctor v. Davis: The Real Story	11	(6)
Why Tell Tales?	17	(5)
2 War on the Common Law	22	(20)
Warriors	22	(5)
War on the Common Law	27	(7)
The Tort Reform Agenda	34	(6)
The Common Law and America	40	(2)
3 The Third Branch of Government	42	(24)
Beginnings	42	(3)
Separation of Powers and the American Judiciary	45	(7)
The Common Law Tradition	52	(8)
An American Bench and Bar	60	(2)
An American Procedural System	62	(4)
4 Disciplined Democracy and the American Jury	66	(36)
Legends	66	(11)
The Founders and the Civil Jury	77	(2)
The Contemporary Civil Jury: England versus America	79	(3)
Disciplined Democracy	82	(6)
Is the Civil Jury Competent?	88	(6)
The Civil Jury and Societal Values	94	(8)
5 The American Common Law System	102	(36)
Is Proctor an Example of System Failure?	102	(13)
The Four Legs of American Common Law	115	(8)
Why the Common Law Is Special	123	(15)
6 Who Regulates Auto Safety?	138	(35)
Administrative versus Common Law Regulation	138	(3)
The Stunning Improvement in Auto Safety	141	(4)
Administrative Regulation	145	(14)
The Bronco H Story	159	(4)
Who Regulates Auto Safety?	163	(6)
Balancing Safety and Other Considerations	169	(4)
7 The Three Revolutions in Products Liability	173	(24)
Cardozo's Paradigm	173	(11)
The First Revolution: Strict Liability for Defective Products	184	(6)
The Second Revolution: Strict Liability for Nondefective Products with Unreasonably Dangerous Features	190	(3)
The Third Revolution: Strict Liability for Unreasonably Dangerous Products	193	(4)
8 The Common Law and the Future	197	(24)
Tobacco and Guns	197	(14)
Common Law in the Twenty-first Century	211	(10)
Notes	221	(38)
Index	259	(6)
About the Author	265