Un-Making Law: The Conservative Campaign to Roll Back the Common Law

Overview

There is an undercover war going on in America that impacts everyone's life far more than the legal issues that typically grab the headlines. The conservative movement has been systematically turning back a century's worth of the evolving gains and protections found in the common law-the areas of law that affect the everyday activities of ordinary people.

Throughout the twentieth century, contract, property, and personal injury law evolved to take more account of social ...

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Un-Making Law: The Conservative Campaign to Roll Back the Common Law

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Overview

There is an undercover war going on in America that impacts everyone's life far more than the legal issues that typically grab the headlines. The conservative movement has been systematically turning back a century's worth of the evolving gains and protections found in the common law-the areas of law that affect the everyday activities of ordinary people.

Throughout the twentieth century, contract, property, and personal injury law evolved to take more account of social conditions and the needs of consumers, workers, and less powerful members of American society. Contracts were interpreted in light of common sense, property ownership was subjected to reasonable-use provisions to protect the environment, and consumers were protected against dangerous products.

But all that is changing. Conservatives have a clear agenda to turn back the clock on the common law to maximize the profits of big business. Some significant inroads have already been made to protect gun manufacturers from lawsuits, enforce form contracts that prevent employees from suing for discrimination, and hamper the government's protection of the environment against aggressive development, for example. More rollbacks are on the horizon.

Although this aspect of the conservative agenda is not as visible as assaults on abortion rights and civil liberties, it may ultimately have even greater impact on our society. Jay M. Feinman's book is an accessible, eye-opening primer, full of vivid examples and case histories-from victims of medical malpractice who cannot recover damages to people who relinquish their right to sue by applying for a job.

If you subscribe to any of these common myths of twenty-first-century America, you will find surprising facts and illuminating analysis in Un-Making Law:
The "All-American Blame Game" has corrupted our moral fiber-everyone is looking for a scapegoat to sue whenever anything goes wrong.
Malpractice lawsuits have gone sky-high in recent years, forcing insurance companies reluctantly to raise rates and forcing doctors out of practice.
Consumers and employees agree to arbitration because it is a much simpler, less expensive, and fairer way to resolve contract disputes.
The government invades the rights of private property owners when it protects endangered species and regulates land development.

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Editorial Reviews

From the Publisher
Even otherwise knowledgeable citizens will not understand what they read in the press about the Republican movement for 'tort reform' without reading Un-Making Law. Jay Feinman lays out the actual facts, and shows that what masquerades as 'reform' is better described as a deliberate attempt to repeal the historic, democratic reform of tort and contract law that aimed to protect the general public. Un-Making Law clears away the false rhetoric of the 'reform' movement and makes it possible for citizens to decide whether they really want to submit their welfare totally to the market. Feinman thinks not, and so do I.--Stanley N. Katz, acting director, Law and Public Affairs at Woodrow Wilson School, Princeton University

'Un-Making Law . . . points out that George Bush's agenda involves more than playing cowboy in Iraq and giving tax breaks to fat cats. It also includes enacting tort reform, which . . . would ultimately reduce legal protections available to ordinary Americans while increasing those same protections for HMOs, drug companies, and other manufacturers.'--Frank Rubino, Philadelphia Weekly

'I highly recommend this book . . . It recognizes that tort law is not the only target in this radical campaign to reduce consumer rights. Today's neo-conservatives also seek absolute property rights and contracts free of government regulation. Feinman's book is a thunderbolt.'--Michael Rustad, Trial Magazine

Kirkus Reviews
A powerful right-wing conspiracy is gunning for the law-and seeking to discard a hundred and more years of constitutional precedent. So argues contract-law specialist Feinman (Distinguished Professor of Law/Rutgers Univ.; Law 101, not reviewed) in this dissection of the "comprehensive and coordinated campaign to reshape the common law" being mounted by a neoconservative cabal of industrialists, land developers, bankers, politicians, insurance companies, and even some academics, all backed by "a network of trade groups, think tanks, right-wing foundations, membership organizations, lobbyists, and litigation centers." Their goal, by Feinman's account, is to restore the classical legal theory of the Gilded Age, when robber barons ruled the roost and working people were afforded few protections by the law. The social Darwinism implicit in that theory was pretty well discarded a century ago, writes Feinman, but it's now back, manifested in arguments that hold that government is the problem and not the solution, and that market values are the sole measure of social good. Such arguments, advanced with increasing force in just the last few years, have been raised against a legal system supposedly gone mad, against the bogeyman of fat-cat trial lawyers out to enrich themselves at the expense of their poor clients. In fact, Feinman holds, this characterization is grossly exaggerated if not downright false. Any attempt to limit awards for damages will result in injustice: "Because they take cases on a contingent fee basis and advance the costs of litigation, victims' lawyers will only take cases where the probable recovery is much greater than the expense of investigating and pursuing the case."Moreover, he adds, the present tort system provides a needed check: manufacturers and providers take greater pains to issue safe products and services when the threat of liability hangs over them, and "if other forms of government protection are decreasing, tort law as a regulator of safety becomes more, not less, important." Feinman's provocative essay provides, among other things, an interesting take on the spilled-coffee-at-McDonald's case.
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Product Details

  • ISBN-13: 9780807044278
  • Publisher: Beacon
  • Publication date: 10/28/2005
  • Pages: 128
  • Product dimensions: 6.01 (w) x 8.96 (h) x 0.57 (d)

Meet the Author

Jay M. Feinman, an authority on contract law, tort law, and legal education, is Distinguished Professor of Law at Rutgers University School of Law, Camden. He is the author of Law 101: Everything You Need to Know About the American Legal System.
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Table of Contents

1 The resurrection of classical common law 7
2 Injuries, victims, and the attack on tort law 19
3 A realistic view of tort law 49
4 Consumers, workers, and the tyranny of freedom of contract 78
5 Freedom of contract and fair contract 111
6 Property rights and the right's property 128
7 Takings and transcendental nonsense 159
8 The movement to un-make the law 172
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