Los abogados, demandas y derechos legales: la batalla sobre Litigios de la Sociedad Americana
Abogados, Litigios y Derechos Legales: La batalla sobre Litigios de la Sociedad Americana
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Las demandas más quemaduras de café, heridas en los parques, incluso la mala enseñanza: litigios “historias de horror” crear la impresión de que los estadounidenses son codiciosos, pendenciero, y demandar-feliz. La verdad, como este libro deja claro, es muy diferente. Lo que Thomas Burke describe en Abogados, Litigios y Derechos Legales es una nación, no de los ciudadanos litigiosos, sino de políticas litigiosos – leyes que promueven el uso del litigio en la resolución de disputas y ejecución de políticas públicas. Este libro es un relato convincente de cómo tales
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|A keen legal scholar probes American litigiousness, with a leaning toward the legal profession,
A strength of Burke’s book is his documentation of basic facts and concrete details that are important for any evaluation of American litigiousness – including his own. Burke cites outrageous cases of lawsuits, like the prisoners who “sued for chunky peanut butter rather than the smooth kind”, New Yorkers who sued for injuries sustained after they jumped in front of subways, students who sue professors for bad teaching, overweight moviegoers who sue theaters because their seats aren’t wide enough, etc. He recognizes that these are not just amusing stories. “They are parables about a fundamental breakdown in American society. The prerequisites for peaceful community life, the stories suggest, have evaporated. Greed, individualism, and contentiousness are winning out over, as one book puts it, ‘common sense’ . . Nearly everyone, a few lawyers and legal academics to the contrary, seems to believe that litigation is out of control.” But Burke asserts that the extreme cases are unrepresentative, and that business interests have blown the a supposed litigation crisis out of proportion, though acknowledging that “the range of matters that can be litigated in the United States is broader than in other nations and growing each year”.
Burke debunks the notion that that Americans on the whole are more inclined to sue than people in other nations. He summarizes research showing that only one or two percent of Americans injured in accidents claim liability or file lawsuits, and “only one of eight victims of medical malpractice make a claim.” In fact, he argues that “the United States seems to be filled with ‘lumpers’, people inclined to lump their grievances rather than press them.”
Burke offers detailed case studies and examples of the role of litigation in environmental policy, such as the CERCLA (Superfund) law, over which battles have raged since the 1980s. He points out that although there are been widespread criticism of the abuses, inefficiency and problems caused by litigiousness, reforms have defied efforts “of a cavalcade of researchers, journalists, public relations specialists, and lobbyists”. Burke concludes that, in agreement with the work of Stanford professor of law and policy, Robert Kagan (“Adversarial Legalism: The American Way of Law”), the roots of litigiousness come from U.S. constitutional traditions, combined with “a profound distrust of centralized governmental power”. The expansion of government in the Franklin Roosevelt and Lyndon Johnson Administrations, the civil rights laws that took away the immunity of government from suit, and the environmental laws of the 1970s, vastly expanded the role of Congressional law, and with it the scope of court jurisdiction to nearly every aspect of society. Burke makes the point that courts provide a way for activists to attack social problems without seeming to augment the power of the state, and thus are a major avenue for expanding social reform efforts.
Burke’s book takes care to cite tort reformers and other critics of litigiousness. But Burke seems much more critical of critics of litigiousness than of the abuses of the legal profession (tending to attribute acknowledged excesses to the laws and historical factors). I find lack of balance in omitting or going lightly over serious problems that should concern a profession claiming to be committed to truth, justice, and fairness. Let’s cite a few. It’s undeniable that class action lawsuits have bankrupted whole industries like asbestos, and that some firms specializing in such suits committed massive (but unpunished) fraud. There is obliviousness in the legal profession to the mendacity displayed in the full-page personal injury ads that are prominent in every book of yellow pages in the nation, some with email addresses like “[...]“). Doesn’t he realize that this is akin to and legitimizes the kind of “bottom line” mentality blamed for the recent financial crash? Virtually all major white-collar corporate scams, including ENRON, have been aided by lawyers. Very few of these lawyers have been indicted. The legal profession has taken no steps that I and lawyers in my acquaintance are aware of to create a system or formal body to police its members and independently review its role in American society. Instead, it has almost always blocked moves toward legitimate reform of laws that might affect the income or interests of a significant number of members of the profession.
In my own field of concern, environmental law and green energy development, labyrinthine legal frameworks were created in the 1970s to stop environmental hazards. Powerful economic forces were feared to coopt or influence regulators. Unfortunately, these societal structures not only stopped undesirable developments. They came (as shown by Professor Kagan, among others) to block or delay infrastructural improvements, and are now impeding critical renewable energy developments in…
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|The Constitutional Underpinnings of our Litigious Society,
After dismissing some of the old standby explanations like rights consciousness, erosion of community values and an overrepresentation of lawyers in Congress, Burke focuses on how the fundamental structure of American government makes litigious policies an attractive option for activists seeking change.
Burke said the U.S. Constitution set up a government structure based on federalism, separation of powers and judicial independence that makes it hard for activist groups to advance social change through the legislative process.
According to Burke, the Constitution also shapes the way Americans view government and their own political interests; and distrust of centralized government power is at the core of the American constitutional tradition:
“American activists support court-based schemes in part because of their ambivalent attitudes toward the welfare-regulatory state, attitudes that are strongly reinforced by the structures in the Constitution.”
Burke’s thesis is that this constitutional tradition creates specific incentives for activists to support litigious policies, rather than legislative or regulatory ones. Litigious policies help activists to:
1. Insulate their policies from political enemies
2. Gain power over the actions of states and localities
3. Do good things for constituents without spending government dollars.
Burke introduces four types of antilitigation efforts – Discouragement, Management, Replacement, and Resistance – and shows how key interest groups influence the political process in order to support reforms that advance their interests or undermine ones that don’t.
He spends a good deal of the book exploring three attempts at litigation reform and explaining how the constitutional incentives to litigation affected the outcome of each. The examples are the Americans with Disabilities Act, the struggle over no-fault auto insurance in California, and the vaccine injury compensation program.
The book is written in a manner that is easy to read and easy to understand, and the author makes good use of detailed examples to explain and emphasize key concepts. The detailed blow-by-blow accounts of each attempted litigation reform get to be a little tedious at times, but they do paint a clear picture of America’s litigious political system in action.
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