Why Lawsuits are Good for America: Disciplined Democracy, Big Business, and the Common Law / Edition 1

Why Lawsuits are Good for America: Disciplined Democracy, Big Business, and the Common Law / Edition 1

by Carl T. Bogus
     
 

ISBN-10: 0814799167

ISBN-13: 9780814799161

Pub. Date: 07/01/2003

Publisher: New York University Press

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

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Overview

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. In Why 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history, theory, empirical data, and colorful case studies, Bogus explains why the common law, rather than being outdated, may be more necessary than ever.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 America provides 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.

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Product Details

ISBN-13:
9780814799161
Publisher:
New York University Press
Publication date:
07/01/2003
Series:
Critical America Series
Edition description:
New Edition
Pages:
265
Sales rank:
1,102,211
Product dimensions:
6.00(w) x 9.00(h) x 0.69(d)

Table of Contents

Acknowledgmentsxi
Introduction1
1 Why Tell Tales?6
Danforth's Tale6
Proctor v. Davis: The Real Story11
Why Tell Tales?17
2 War on the Common Law22
Warriors22
War on the Common Law27
The Tort Reform Agenda34
The Common Law and America40
3 The Third Branch of Government42
Beginnings42
Separation of Powers and the American Judiciary45
The Common Law Tradition52
An American Bench and Bar60
An American Procedural System62
4 Disciplined Democracy and the American Jury66
Legends66
The Founders and the Civil Jury77
The Contemporary Civil Jury: England versus America79
Disciplined Democracy82
Is the Civil JuryCompetent?88
The Civil Jury and Societal Values94
5 The American Common Law System102
Is Proctor an Example of System Failure?102
The Four Legs of American Common Law115
Why the Common Law Is Special123
6 Who Regulates Auto Safety?138
Administrative versus Common Law Regulation138
The Stunning Improvement in Auto Safety141
Administrative Regulation145
The Bronco II Story159
Who Regulates Auto Safety?163
Balancing Safety and Other Considerations169
7 The Three Revolutions in Products Liability173
Cardozo's Paradigm173
The First Revolution: Strict Liability for Defective
Products184
The Second Revolution: Strict Liability for Nondefective
Products with Unreasonably Dangerous Features190
The Third Revolution: Strict Liability for Unreasonably
Dangerous Products193
8 The Common Law and the Future197
Tobacco and Guns197
Common Law in the Twenty-first Century211
Notes221
Index259
About the Author265

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