Objection, Your Honor

For years, authors like Philip K. Howard, Walter Olson, and ABCs John Stossel have churned out books declaring that lawsuits and the liberal lawyers who bring them are driving the country to ruin. They argue that the country is suffering from a collective abandonment of personal responsibility that has resulted in millions of citizens ready to sue their dry cleaners and other innocent bystanders over the slightest mishap. Books offering an alternative interpretation of Americans legendary litigiousness have been few and far betweenand mostly written by Ralph Nader. So Chicago labor lawyer Thomas Geoghegans new book, See You in Court: How the Right Made America a Lawsuit Nation, offers a refreshing variant to the anti-lawsuit publishing monolith.

Geoghegan insists that the reason for all the lawsuits has nothing to do with personal responsibility or a surge in American victimology. He starts out in agreement with the conventional wisdom that Americans have gotten more litigious (a point many a personal injury lawyer would heartily dispute, as tort litigation has been on a steady decadelong decline). But, in a pointed rebuttal to Howard and the others, he suggests that an onslaught of lawsuitsparticularly the employment lawsuits that Geoghegan specializes inis the natural by-product of thirty years of right-wing efforts to deregulate the economy and dismantle institutions that protect average people from rapacious capitalism. Geoghegan is not the first person to observe that lawsuits often flourish where government failsUC Berkeley poli-sci professor Robert Kagan has probably cornered the academic market on the subjectbut he is by far the most entertaining of the bunch.

Geoghegans worldview is shaped by his many years representing union workers, particularly the casualties of the steel industry collapse. Readers familiar with his work will not be surprised to learn that he blames much of the problem with lawsuits on the disappearance of organized labor, or what he calls the Big Fact. He argues, for instance, that an increase in employment litigation has coincided precisely with the demise of old-fashioned union arbitration, where labor leaders worked with management to resolve employment disputes. The old system, he says, was cheaper, with built-in protections against the horrors found in todays scorched-earth litigation.

See You in Court is in many ways a sequel to Geoghegans award-winning first book, Which Side Are You On?, about the death of the labor movement. The style is similar, the writing also breezy. In both books, he successfully mixes wry observations about the political system with anecdotes from the frontlines of his own practice.

The essential charm of Geoghegans writing is his honest, self-deprecatory style. Hes not proud of the practices that he and his fellow lawyers descend to, and he doesnt exactly present himself as a hero. In the war stories of his legal practice, Geoghegan always loses, whether its voting rights, gun control, or payday lenders hes taking on, and hes good at highlighting absurdity in the bar. For instance, in a chapter about why litigation costs are escalating, Geoghegan writes about one of his rare victories, a case where six New York law firms flew lawyers (who were known to bill $800 an hour) to Chicago to litigate an emergency motion. The emergency? The New York lawyers were protesting the fact that Geoghegans firm had used a fax, rather than overnight mail, to send the other side a motion.

Geoghegans client in the case was fatally ill, a fact which he uses to make a larger point. Such legal tactics, Geoghegan says, serve to enrich the defense lawyers at the expense of dying plaintiffs: the more the litigation costs, the less money is left in the companys insurance policy to settlea common practice that Geoghegan calls self-cannibalizing. He laments that he is part of the problem. The more we sue over looting of pension funds or just plain old-fashioned medical error, the more the money flows to people at the topto law firms, to experts, to the insurance companies. Thats how it works in a plutocracy. The more we sue the rich, the richer the rich get.

In the end, though, the book is ultimately frustrating. Small things start to annoy, like the fact that Geoghegan doesnt identify a lot of the people or the parties in cases he writes about, presumably because hes still suing them. The lack of specifics is the hallmark of anecdote-based books attacking the legal system from the right, and it badly weakens Geoghegans authority on his subject.

The books major failing, however, is that it suffers from a lack of hard facts. Its more rant than reporting, like something Geoghegan wrote at night in between briefs and a stiff drink. While many of his anecdotes do support his notion that the disappearance of organized labor and government regulation has sent Americans running to court, he doesnt bolster the argument with much in the way of data.

For instance, Geoghegan argues that the judicial branch has assumed much of the power of the legislative branch over the past forty years as the rest of the government has become too weak to govern. Its a provocative idea, and one that many on the right have also made. One of the only pieces of empirical evidence Geoghegan offers to support his thesis is that today there are more federal judges on the bench in Chicago than there were in 1962. He then speculates that judgeships around the country must have also seen exponential growth, but he doesnt bother to check. Why not find out for sure?

Even if he did, though, his argument falters on another piece of simple math. After all, there are 120 million additional people living in the U.S. today than there were in 1960, so it stands to reason that we might have a few more judges (not to mention lawsuits), regardless of whats going on in the political system. Its a small point, but it suggests a larger sloppiness that undercuts many of the valid arguments Geoghegan has to make.

And then there is Enron. Oh, how I want to believe that tort reform caused Enron! Efforts to analyze the role of the 1995 Private Securities Litigation Reform Act (which restricted shareholder suits over fraud and other misconduct) in the corporate scandals of the early millennium have spawned entire conferences and law review articles on both sides. But its still just a theory thats mostly loved by securities lawyers on the plaintiff side. Yet Geoghegan embraces it uncritically.

The early promise of the book bogs down in the last third, when Geoghegan moves away from the legal system and into philosophy and, finally, politics. While his assessment of the nihilism of the right-wing lawyers of the Federalist Society is dead on, the chapter on legal philosophy is a tough read, meandering through John Rawls and Aquinas, Aeschylus and Abbe Sieyes. Geoghegan is clearly well read, and the philosophy is mixed in nicely with a critique of the U.S. Supreme Court. But Geoghegan overreaches in his attempt at political analysis. He devotes a fair amount of time to the tired arguments about the evils of gerrymandering, the elitism of the U.S. Senate and the electoral college, and how small rural states with a tiny fraction of the population get to dictate policy for everybody else.

While hes right about all of it, the discussion seems largely out of place in a book that sets out to show How the Right Made America a Lawsuit Nation. After all, the Senate has been elitist for more than 200 years, but the so-called litigation explosion only began thirty or forty years ago. In the end, its far more fun to read Geoghegan on Geoghegannot the philosopher, but the underdog labor lawyer losing worthy cases, aching for justice, and using pointed, dry humor to illustrate just how much the right is responsible for this mess he sees down at the courthouse every day.

Stephanie Mencimer

Stephanie Mencimer is a staff reporter at Mother Jones.