Good positive case, overbroad characterization of opposition

books:

	• Un-Making Law: The Conservative Campaign to Roll Back the Common Law Jay M. Feinman Beacon Press, 2005 - 235 pages average customer review:based on 4 reviews view larger image
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Distortions of legal philosophy

Keeping an eye on all the fronts of the conservative attempts to destroy liberal America is not always easy, and this excellent account of the 'un-making' of law is a warning, and a reminder that changes are occurring beyond the threshold level of awareness of non-specialists. Here the issues of contract, property, and personal injury law and the rightwing effort to rewrite a century of legal writ are given a detailed look, and the result, in this very readably scholarly study, is especially insightful in the context of legal history: once again the story begins in the Gilded Age with its highly biased versions of common law, which a century of lawyers were able to critique. Now the conservatives are genuinely 'reactionary' and wish to erase all of the gains. Useful and important book for anyone who is not a legal specialist, but is concerned or confused by the current propaganda, e.g. about the issue of tort lae, about which alarmist scenarios are flushed through the media. So if you fell for the story about the lady winning a case for spilling coffee at MacDonald's (she suffered third degree burns...) this is the book to start with.

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Good positive case, overbroad characterization of opposition

This is an excellent book on its positive side. I'm deducting a star because Jay Feinman paints his 'opposition' with such a broad brush. (In this respect he's a breath of fresh air next to, say, Michael Moore or Al Franken. Nevertheless that leaves considerable room for improvement.)

Feinman, also the author of the excellent _Law 101_ and a very clear expositor of legal issues, sets out here to defend a century's worth of development in American common law against those who would prefer to turn the legal clock back to 1900 (or before). Among his stated targets: classical liberals, libertarians, conservatives, neoconservatives, and pretty much everybody other than 'progressives'.

As a libertarian myself, I might not be expected to find this sort of thing congenial. But on a few subjects my libertarianism dresses to the left, and at any rate -- more to come on this point -- Feinman's arguments aren't quite as dependent on political ideology as he thinks they are.

The meat of his case is set out in the book's middle six chapters -- two each on tort law, contract law, and property law. In each of these areas, he contends, developments of the last century or so have rendered the common law more protective of the interests of the less wealthy and powerful, and it's important to preserve those advances.

I'm not an easy reader to please on this subject, and Feinman does about as well as it's possible to do: I agree with about two-thirds of what he writes, respect his arguments in most of the rest, and only once or twice feel like hurling the book against the wall. That may not sound like much, but it compares favorably with a lot of other legal commentators.

On tort law, I agree with so much of what he writes that the differences aren't worth discussing. He's right; the common law of torts is working just fine (i.e., as well as law ever does), and it would be mind-bendingly stupid to 'reform' it. (This subject is pretty ideology-independent. For example, my own favored reading of the Second Amendment is somewhere to the right of the NRA's, but I still think making it impossible to sue gun manufacturers is just plain dumb.)

In contract law, the heart of his claim is that twentieth-century liberalizations in interpretation and enforceability have provided protections to consumers who might otherwise (and previously did) find themselves stuck with vastly unfavorable contract terms that in many cases they might not even have read before 'agreeing' to them. Recent developments, he says, have undone those protections, to the detriment of consumers.

Here, too, I agree (he's especially good on the hazards posed by arbitration clauses) but with one misgiving. Feinman likes to pick on Judge Alex Kozinski and quotes him here as a proponent of the idea that 'loose' contract interpretation by the courts could make it hard for parties to a contract to tell with precision just what they were agreeing to.

Well, I don't think Judge Kozinski walks on water or anything, but he's much more sensible than Feinman gives him credit for. And in this case he's raising an entirely valid point -- and one that wouldn't tell one bit against Feinman's own case, if he handled it right. At the very least, I'd have liked to see an acknowledgement of the legitimacy of Kozinski's concern and an argument that modern contract law can address it (which I think it can, and Feinman seems to think so too). At any rate, there seems to be nothing wrong with admitting that there are sound arguments on _both_ sides of the issue, and that this is one of the things that make contract law so difficult.

With property law, we enter more dangerous waters. Feinman starts, wisely, with Wesley Hohfeld's seminal analysis of legal rights and duties, and contends mightily against an 'absolutist' view of property rights. Fine so far, and he racks up lots of points both in his positive discussion and in his counterarguments (e.g. on the subject of John Locke, whose theory of property rights contains an important proviso not generally discussed in the libertarian literature).

But Feinman seems unaware that many of his 'opponents' -- Richard Epstein, for example (whose view of 'takings' Feinman rightly notes is, to put it mildly, not what the framers meant) -- _also_ reject an 'absolutist' understanding of property rights. (Epstein, much to the embarrassment of some of his libertarian fellow travellers, is a utilitarian. Feinman uses 'absolute' to mean several different things, and Epstein would agree that property rights are not 'absolute' according to most of those meanings.) And he seems to find the (crucial) economic role of property rights not worth discussing -- a bit ironically, since he is so keenly aware of the role of economic incentives in getting tort claims litigated.

(Nor is it obvious why Epstein's departure from the framers' understanding of 'takings' is such a disaster, since Feinman himself allows closely analogous departures elsewhere. Our post-_Katz_ understanding of 'searches' is not, for example, limited to strictly physical property, but I don't see Feinman objecting to our extended Fourth Amendment protection.)

I could pick nits about this subject all day, so I'll just say that Feinman's positive arguments are good but would have benefitted from a more nuanced exposition of the views of his opponents. In the absence of such an exposition, I'm not at all sure that his shots are hitting their intended targets.

I think this is true in general of the entire book. Feinman's 'frame story' is that a bunch of conservatives are conspiring to repeal the twentieth century, and there's surely something to this story (whether good or bad). But in the process of telling it, he lumps together people who might be surprised to be found in one another's company.

(The metaphor 'repeal the twentieth century' isn't very apt here. You don't 'repeal' common law; you 'repeal' statutes. And it's true that lots of libertarians and conservatives -- including me -- would gladly repeal a large number of twentieth-century _statutes_. But Feinman's book isn't about statutory law; it's about the common law, with regard to which I don't believe there's any such consensus.)

A more unified approach to political theory would have helped. Feinman buries some of his points about the structure of federalism, and the relative roles of federal and state government, in the later portion of the book, but they'd have been handy in his discussion of torts too (where they're lurking implicitly but not stated clearly).

Also helpful would have been a clear statement that the market and the law go together in human society roughly as words and grammar go together in human language. Feinman doesn't want 'conservatives' to turn the clock back a century, but his own occasional bursts of anti-'market' rhetoric sound as though _they_ hail from around 1900.

On the whole, though, the strength of Feinman's arguments and examples carries the day. The heart of the book _is_ his positive case, and he makes it very well.

Highly recommended, then, despite my deduction of one star. Half the job in public discourse is to get the arguments and counterarguments clearly articulated, and you'll find Feinman helpful in that regard even if you disagree with everything he has to say. But you shouldn't; he's right a lot, and -- despite his anti-'conservative' presentation -- it's possible to agree with pretty much anything he says without changing your political alliances.

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Author is not into the spirit of liberty

This is an eye-opening book because it well shows where the opponents of tort reform are coming from. In particular, the author does not possess "the spirit of liberty" as Judge Learned Hand defined it: "the spirit which is not too sure it is right." Although the rich and powerful certainly would like to do anything they want without having to worry about liability, the system is clearly broken when:

1) municipalities have to close swimming pools and other facilities because of the threat of lawsuits

2) the MAJORITY of doctors are sued at least once

3) yes, a lady can recover damages from injuries suffered when she spilled coffee on herself - that was served at the recommended temperature - and even though it happened because she was balancing the said coffee on herself in a car

4) no company will undertake to come up with things that could help problems that pregnant women have (and Bendectin - which was never shown to cause any birth defects - was withdrawn by the manufacturer because the costs of fending off meritless lawsuits was too expensive)

And so on and so on.

But, as I said, this book is a good example of the kind of anti-business mentality that sees all economic activity not conducted by the government (which can't be sued) as fundamentally evil or at least morally suspect. It shows what ordinary people who simply want to solve the *obvious* problems with the tort system what they're up against.

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Conservatives are engaged in a campaign to turn back the clock on the common law?the law of contract, property, and personal injury?to increase the rights of big business. Some significant inroads have already protected gun manufacturers from lawsuits and hampered the government's protection of the environment, for example; more rollbacks are on the horizon. Insurance companies and HMOs are anticipating a huge bonus if the rights of patients are severely curtailed by Congress.

"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

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