The rise of the fourth branch

By Steven Martinovich
web posted June 9, 2003

The greatest threat to the American republic may not be overreaching governments that casually ignore the wishes of their citizens, but rather a newly powerful class of lawyers who are able through their work to craft new social and legal regulations and enrich themselves at the same time. They have become, in effect, a fourth branch of government that is mostly unregulated and unaccountable to the American public, a new class of rulers that bypasses the institutions of democracy in order to achieve their agenda.

Manhattan Institute senior fellow Walter K. Olson argues that case in The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law. Olson, who has long taken the legal profession to task for its excesses, believes that America's trial lawyers are damaging the legal system and democracy with outlandish lawsuits designed to extract as much money from deep pocketed corporations as possible. Along the way, he writes, these lawsuits also create new social policy which Americans haven't had a chance to properly debate.

Olson relates how the multi-billion class action lawsuits that make the news headlines today came about from changes in legal theory during the late 1960s and 1970s. Legal theories that would have been laughed out of a courtroom a mere three decades ago are today accepted without question. Trial lawyers, some of whom were responsible for those new theories, then employed them to take aim at big business. It's resulted in an atmosphere where even companies without blame quickly agree to settlements rather than risk being put out of business.

The first major target of America's trial lawyers was the asbestos industry. There was certainly some justification for this suit. Tens of thousands of workers had been exposed to asbestos over the decades and many were suffering serious illnesses as a result. The federal government, which played a prominent role in exposing thousands of shipyard workers during the Second World War, had washed its hands of compensating them and it fell upon lawyers to remedy the situation. Very quickly, however, their lawsuits expanded to include companies with only a tangential link to the issue resulting in the bankruptcy of several of them.

Thanks to contingency fees, the trial lawyers became enormously wealthy -- Peter Angelos' purchase of the Baltimore Orioles was funded in part thanks to asbestos lawsuits -- and proceeded to roll that money into new lawsuits aimed at tobacco, firearms and breast implants. With the help of state and federal governments, thanks in part to large campaign contributions, trial lawyers won concessions and money from many in those industries as well. Evidence of wrongdoing was hardly necessary given that an unquestioning media, beholden judges and ignorant juries were easily persuaded with junk science, anecdotal evidence and bewilderingly complicated though generally specious arguments.

For many these lawsuits were a Godsend. State and federal governments were often unable to enact activist agendas so the courts were looked upon as a remedy. If you couldn't enact strict anti-tobacco laws because of quibbling politicians, the thinking went, and then the courts could be relied upon to punish firms engaged in a legal business and force them to give up some of their constitutional rights. The fact that Americans weren't allowed to weigh in on imposed social policies didn't seem to bother them terribly. As Olson argues, there is an immense danger with that.

"Given their freedom from many legal constraints to which actual government officials are subject, it would be no surprise if trial lawyers held an edge as to their ability to cut through bickering and indecisiveness and just 'get things done.' But that is merely to beg the question: If just getting things done is the main priority, why then do we go to such lengths to constrain the powers held by 'real' government officials? The answer, of course, is that we do not for a moment trust these officials to wield the intimidating powers of government office without imposing on them a high degree of transparency and predictability, because we know how likely it is that the power would otherwise soon be abused. And yet somehow we allow the Fourth Branch to seize the historic powers of government while escaping the long-evolved constraints on the abuse of that power."

The Rule of Lawyers is a powerful argument for tort reform, likely why it and Olson has been greeted by such anger by groups like the American Trial Lawyers Association. Olson is entirely right that reforming the system by instituting a loser-pays law to stop fishing expeditions and mandating governments use only civil service lawyers would pay dividends. It is a call to a Republican controlled Congress, which is less beholden to the contributions that trial lawyers make, to begin seriously overhauling the system. To fail to do so is to create a nightmarish world that Olson documents, one where trial lawyers become a class so powerful that they become a separate and unequal government.

Steven Martinovich is a freelance writer in Sudbury, Ontario, Canada.

Buy The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law at Amazon.com for only $18.17 (30% off)

Other related stories: (open in a new window)

• Lawsuits fueling health care crisis by Wendy McElroy web posted May 20, 2002
  If you're having a baby, don't do it in Las Vegas and several other communities across the United States. Wendy McElroy says mounting lawsuits are forcing doctors to refuse care
• Crazy court cases show: Bad science makes bad law by Amy Ridenour (November 1, 1998)
  Any Ridenour details the growing conflict between science and law thanks to trial attorneys and paid expert witnesses
  

Printer friendly version

Home