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The threat from attack attorneys is no joke
USA Today (Society for the Advancement of Education), July, 2005 by Walter Olson
Until quite recently, a group of Americans who saw the need for some sweeping new law would march in the streets, organize a letter-writing campaign to Congress or the state legislature, or try to replace congressmen or state legislators with candidates sympathetic to their cause. That was how politics was done. Today, though, politics is not necessary. If you want gun control or tighter control over tobacco or more environmental regulations, you simply can call 1-800-LAWSUIT. Operators will be standing by around the clock, and once you agree to give the attorneys a share of the monetary reward, you can lean back and watch them go to work.
Take tobacco, for instance. Despite years of agitation, Congress and the state legislators had not acted rapidly enough for antitobacco activists who wanted an increase in taxes on cigarettes and more regulation of advertising. So, what happened? We saw private attorneys flying around the country in their Learjets, signing up state attorneys general and brokering a settlement that obtained $246,000,000,000 for state governments and about $15,000,000,000 in fees for the lawyers. The settlement also resulted in the adoption of regulations that the elected branches of government had been unwilling to enact--as well as what amounted to a new tax on cigarettes (a tax increase unlike any other tax hike in that it did not originate in a legislature).
Soon we saw this same process of bypassing the political system being tried in other areas as well. American Lawyer magazine published an article on the origins of gun litigation, in which it interviewed the private lawyer who had dreamed it up and flown around the country selling it to mayors. The article explained that it fit his thinking--that the plaintiff's bar should act as a "de facto fourth branch of government, one that achieved regulation through litigation when legislation failed." Richard "Dickie" Scruggs, the private attorney who organized the tobacco litigation (and whose firm got an estimated $1,000,000,000 for it), was profiled in time, which reported as follows: "Ask Scruggs if trial lawyers are trying to run America, and he doesn't bother to deny it: 'Somebody's got to do it.'"
What are the differences between this newly contrived fourth branch of government and the three branches that the Founders established in the Constitution? To begin with, there is the manner of selection. Those in the fourth branch do not have to worry about pesky elections--or even about getting confirmed by the Senate, as Federal judges do. Nor do they have to be concerned about the safeguards of transparency that are built into our political system. Much of their activity takes place behind the scenes. Indeed, these cases nearly always are meant to be settled instead of tried, and the public is not admitted into the negotiation room. If the public does not like the results, there is, frankly, not much that can be done about it. This is highly ironic: The proclaimed goal of trial lawyers is to hold every profession and industry accountable for their actions, yet they have created a litigation-based policymaking process in which they themselves almost entirely are unaccountable.
