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A Paean to the Great American… Lawsuit?

Americans have always been litigious. Tocqueville noted in Democracy in America (1835) that “Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate.” The aristocratic visitor from France, trained in the law, did not intend this as a criticism; to the contrary, Tocqueville viewed lawyers (and judges) in America as a stabilizing elite, and praised the extent that “the whole community” (including the “lowest classes”) was influenced by the emerging country’s “legal habits.” Was Tocqueville’s infatuation with the legal profession, which he believed tempered “the excesses of democracy,” well-founded? Nearly two centuries after Tocqueville’s tour of a nascent America in 1831-32, some in the academy evidently think so. In Litigation Nation, legal historian Peter Charles Hoffer argues that litigation “defined the new American nation”—in a good way. His case—sketchily made in a breezy account intended “for the general reader”—is less than compelling.

An Abbreviated History

Let us begin with what Litigation Nation is not. Despite being subtitled A Cultural History of Lawsuits in America, the book is not a comprehensive survey of the subject of litigation. Hoffer has nothing meaningful to say about attorney advertising, arbitration, medical malpractice, contingent fee arrangements, litigants’ recovery of attorneys’ fees  (the so-called “American rule” versus loser-pays), junk science, punitive damages, forum shopping, the growth of the legal professionjudicial activism, litigation funding, legal education, and a host of other issues centrally important to the historical role of lawsuits in the U.S.

Instead, for the most part, Litigation Nation selectively focuses on the history of defamation, title disputes, divorce, lawsuits involving slaves and slavery, workplace disputes, and other prosaic topics, fast-forwarding from the colonial period to the present with little discussion of the intervening developments—where most of the relevant “cultural history” actually occurred. For example, Hoffer’s chapter on “Stock Swindles and Swindlers” consists of a workmanlike overview of railroad fraud in the Gilded Age. Then, in a single page, he purports to connect the dots to the Enron scandal in the modern era. Remarkably, this is the extent of his treatment of shareholder and securities litigation! Hoffer ignores the evolution of federal securities law (and its reform) and the corrupt abuses of the plaintiffs’ bar generally. He devotes not a word to disgraced shareholder litigation mogul Bill Lerach, a major political player (and confidant of President Bill Clinton) who pleaded guilty to a felony charge of obstruction of justice and was disbarred after it was discovered that his firm recruited clients by paying them kickbacks.

Similarly, Hoffer’s abbreviated discussion of class actions—one of the most momentous aspects of American litigation—treats them as an inevitable (and necessary) element of consumer protection. Using the decades-long Dalkon Shield class-action litigation—hardly a typical example—as a case study, Hoffer tediously reviews the complicated procedural history of the “mass tort” lawsuit that drove the manufacturer of the ill-fated IUD, A.H. Robins Co., into bankruptcy. (Hoffer misidentifies the company as “A.R. Robins.”)  After devoting 10 pages (out of a total of 200 pages of text) to this atypical case, which arguably represented the high-water mark of mass tort litigation, Hoffer laments that subsequently “the pendulum swung against permissive certification in the next decade.” Moreover, Hoffer ruefully reports, Congress enacted class-action reforms, thereby leaving helpless individuals at the mercy of rapacious corporations.

In Hoffer’s myopic world, all litigants are “aggrieved persons” who decide to sue in order to “tell their story.”

Litigation Nation often reads like a paean to trial lawyers, who are portrayed as the heroes, combating malevolent forces in American society. In Hoffer’s telling, litigation is an inherently constructive activity, like exercise or eating plenty of fiber. The alternative to litigation is violence, he claims (even though England has less of both). This clichéd perspective lacks both balance and nuance.

Hoffer claims that the anecdotal cases he discusses “are typical of the sorts of cases that ordinary Americans find themselves litigating,” ignoring the economic incentives and policy agenda that motivate a large portion of litigation. Hoffer’s thesis—that lawsuits in the U.S. are based on Americans’ “cultural beliefs” and that litigation “reflects the lives and values of ordinary people”—is a risible canard transparently calculated to justify the outsized role of lawyers and judges in our society. Hoffer never explains why the volume of litigation per capita is so much higher in the U.S. than any other country in the world. In Hoffer’s myopic world, all litigants are “aggrieved persons” who decide to sue “when they want to tell their story,” all lawyers are altruistic, and judges usually act in good faith. “The root of litigation,” he gushes, “has been wounded honor or personal dignity”—never spite or avarice.

Political Motivation and Sloppy Research

In a manner similar to a public relations brief for the trial bar, Litigation Nation air-brushes out all the defects of the civil justice system, depicting only what he wants the reader to regard as benefits: progress, fairness, and safety. The book is silent about massive inefficiency, product liability abuse, asbestos litigation fraud, recruiting phony plaintiffs in securities class actions, patent trolls, and the impact of frivolous malpractice litigation on the medical profession. Are Americans better off than their counterparts in, say, the United Kingdom, by virtue of their greater degree of litigiousness?  Establishing such a conclusion would be necessary to prove Hoffer’s case, but he never even tries. Hoffer presents the results of cases as an unalloyed good. He simply assumes that society is better off with judicially contrived claims for sexual harassment, strict liability for product defects, judicial recognition of same-sex marriage, and similar inventions.

Not only does Hoffer applaud these developments (revealing a progressive orientation in the process), he inexplicably characterizes them as “democratic.” The second half of Litigation Nation is titled “Litigation Defends Democracy.” At one point, Hoffer asserts that “the courts are often the most democratic of our governmental institutions.” This is a highly dubious premise. The elected branches of government are by definition more democratic than unelected judges. When judges, legal scholars, or legal groups (such as the American Law Institute) overturn democratically-enacted laws or policies, the result cannot in fairness be praised as a triumph of democracy. On the contrary, it is the thwarting of democracy. Change may represent progress, but not all change is desirable. And, importantly, the hallmark of democratic change is that it occurs through the processes of representative self-government, not by judicial or administrative edict.

The book ends with an off-topic (and now dated) discussion of the LGBT litigation against the Boy Scouts of America, culminating with the 2000 Supreme Court decision in BSA v. Dale, ruling in favor of the associational rights of the Boy Scouts. Hoffer clearly sides with Dale, quoting sympathetically from Justice John Paul Stevens’s dissent.  If his theme is that sage-like courts always reach the right result, serving as a barometer of the underlying zeitgeist, his disagreement with the majority in Dale highlights his one-sided partisan perspective. Hoffer’s thesis seems to be that courts are wise (reaching decisions reflecting society’s values), except when they rule against the cause favored by the Left.

If this judgment seems harsh, consider the prominent back-cover blurb by Marxist law professor Mark Tushnet, Hoffer’s reliance on left-of-center scholars such as Thomas Piketty, and his utter failure to even acknowledge the body of scholarly literature critical of America’s civil justice system. Among the prominent reformers Hoffer fails to mention: Peter Huber, Lester Brickman, Philip Howard, Marcia Angell, George Priest, Victor Schwartz, Jeffrey O’Connell, and Mary Ann Glendon. Walter Olson, who has written extensively on this topic for nearly three decades, is mentioned only once—dismissively—in the author’s “bibliographic essay.” A gentle review  in the Wall Street Journal concluded that “Mr. Hoffer seems to accept a generally liberal perspective on the goodness of social change effected in the courtroom.”

Aside from an unconvincing thesis, cursory presentation, and slanted sources, Litigation Nation suffers from inexcusable sloppiness. Granted that Hoffer is trained as a historian rather than a lawyer, and that his book is written for a lay audience—errors are errors. Moreover, he credits his wife, a law professor, for reviewing the manuscript. Hoffer refers to the 1935 Wagner Act as the “Labor Relations Act” when the statute’s official title is the National Labor Relations Act; he suggests that unions got no relief from labor injunctions until the NLRA was passed, whereas the 1932 Norris-LaGuardia Act accomplished that goal three years earlier; and his account of Sweatt v. Painter (1950), a pre-Brown desegregation case involving my alma mater, the University of Texas, gets important details wrong. A minor mistake is calling the state trial court in Travis County, where Heman Sweatt’s litigation began, the “circuit court.” The Travis County trial court, housed in a building now bearing Sweatt’s name, is (and was) a “district court.”

More critically, Hoffer describes the Supreme Court’s decision in Sweatt as holding that “There could be no equality in segregation, hence equal protection of the law could never be satisfied, so long as a state mandated separate schools.” This is embarrassingly incorrect. Brown v. Board of Education reached that result four years later; Sweatt was decided under the “separate but equal” standard of Plessy v. Ferguson (1896).  The Court in Sweatt determined that the segregated facilities created by Texas to accommodate Sweatt were qualitatively inferior to the facilities for white students at the University of Texas School of Law. This is an egregious error that calls the author’s overall research, analysis, and conclusions (and the book’s editorial review) into question.

Unfortunately, a balanced “cultural history of lawsuits in America”—a worthwhile project—remains to be written.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 10, 2020 at 07:33:34 am

An off-shoot of the Dalkon Shield class action which had the greatest effect on what has transpired was the legalization of lawyers advertising.

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steve baker
on April 10, 2020 at 07:55:24 am

Well done, and very much needed. The hero worship of the plaintiff's bar encourages some of the most damaging political activism undermining limited government and the rule of law.

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Bruce P Frohnen
on April 10, 2020 at 13:28:36 pm

In deference to the shortness of life I abide by the principle that we must not spend our precious, limited time on what we know will be a waste of time. My principle applies most readily to the art and practice of reading, the time for which is perhaps the most limited and most precious intellectual treasure I possess. Not a moment of reading time will I waste, and most assuredly not reading a book such as the one reviewed (a review I will not read) whose cover screams at the reader, "This book is rubbish and my enemy's propaganda."

Why, I ask in sadness, would one bother to read, let alone review, such a book? Doing so is to engage it intellectually and, thus, to extend to sheer propaganda the undeserved respect of being taken seriously as a work of reason, which it is not. Propaganda is the work of the will to power; it is never the product of reason.

A second of my principles for conserving my precious time is that, whenever possible, I never waste my time arguing with a Thrasymachus (which literally means ''fierce warrior.") Indeed, Thrasymachusism is the Left's dominant psychological trait and the Left's most prominent political tactic. Thrasymachus-types are politically ubiquitous on the Left. They abound as professors of history, literature and government in our nation's leading universities, which they also run They have overrun and now rule our "elite" law schools. They are but political sophists. Thrasymachus is the enemy of truth and a fierce warrior of the will to power, as Plato's "Republic" makes clear. He seeks not to debate rationally but, rather, to win willfully. Power and dominance achieved by force of will and the rhetorical abuse of language, not truth pursued through reason, are the political goals and the sophistical tactics of a Thraysymachus.

In my opinion, the book reviewed is very probably a political tactic and the ideological work of a Thrasymachus and is likely but a weapon of political propaganda. In the interest of not wasting my precious time I would not waste my time arguing about the book's inherent lack of merit.

My third principle for the wise use of precious time is reserved for when I am forced with the necessity of debating a Thrasymachus (or of reviewing his book.) At such time, I never take what is the "necessity" of fighting as the "opportunity" of debating, most especially not on the false terms that are always proffered, those of authentic "debate" and of sincere intellectual analysis and of an honest exchange of ideas in pursuit of truth. The "opportunity" most assuredly is not any of that.

I see the "opportunity" instead, for what it really is, a challenge to the clash of wills, a call to verbal arms in the contest of wills, and I know that it calls not for the canons of debate but, rather, for the rhetorical and political tactics of cultural warfare. Thus, I do not debate the enemy. And I do not waste my time reading and reviewing his propaganda. I already know his talking points, and I already know that his propaganda is but an inherently, intellectually, fatally flawed weapon.

Thus, I openly damn the enemy, condemn his propaganda and, where appropriate and true, seek to shame him and accuse him of deceit, distortion-if-not lies, political treachery and intellectual corruption. I rhetorically trash his propaganda. I do not seek to convert him with logic and prudence or defeat his propaganda with reason. I fight him with rhetoric and assault him with the political and media tactics needed to win our existential cultural struggle, a war which was started by emotions and feelings, not reason, and which must be waged, not with debate, but with the will to power.

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Paladin
on April 11, 2020 at 10:35:55 am

The above reply was not intended as a reply to Mr. Pulliam's review or the book, Litigation Nation. I wrote it and intended to post it in reply to an earlier post on L&L and mistakenly posted it here,
Sorry for my mistake and any confusion.

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Paladin
on April 11, 2020 at 11:35:08 am

Mistake? WHAT mistake?
Confusion? WHAT confusion?

Comments appear to be well directed to Hoffer's deceptive take on the "cultural" history of lawsuits.

Seems fine to me and reflects my own preferred approach to dealing with the Thrasymachuses of the world.

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gabe
on April 11, 2020 at 12:42:02 pm

Gabe, if my lost shoe fits, please wear it.

I also have and will share later some harsh thoughts specifically about Hoffer's "Litigation Nation," of which I can say, as Billy Martin said of Jim Bouton's "Ball Four," " I didn't like it; I didn't read it."

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Paladin
on April 11, 2020 at 16:06:02 pm

Well, my virtual friend and ally-in-verbal arms has convinced me that I was right the first time. Much of my initial reply, supra, fits Hoffer's Leftist, ideological apologetics on behalf of the counter-productive, oft-destructive, American trial-lawyers bar.

Gabe's prodding caused me to do what I said I would never do, read even a book review of a book which is patently rubbish, a book which, on its face, appears to have been written by my cultural enemy. I have now read Pulliam's book review of a book not worth reading and can say that Pulliam's attack on Hoffer is worth reading even if Hoffer is not.

But I want to pile on a bit and only very briefly. I am moved to do so by Hoffer's triple false claims (per Pulliam) that Hoffer offers a“cultural history of lawsuits in America” which shows both that litigation has been benign and has “defined the new American nation.”

None of that is true, for many reasons. I offer but a few, as follows:
A "cultural history" making as its central claim the proposition that litigation "defined" America while playing a constructive role in our history would discuss at least some of the major litigation which history shows actually exerted a profound influence on American history and culture and then would at least attempt to show how this litigation exerted a constructive influence on American history and culture. Hoffer fails to do any of that. Indeed, he fails to discuss any of those cases.

Here are just a few malign litigation milestones which Litigation Nation apparently has ignored:
Dredd Scott vs. Sanders, litigation which was an important provocation for antebellum bloodshed and, ultimately, the Civil War; the Civil Rights Cases, litigation which for a century undermined Congressional enforcement of the Fourteenth Amendment; the Slaughterhouse Cases, litigation which invigorated Jim Crow and all but eviscerated the privileges or immunities clause of the Fourteenth Amendment; Plessy vs. Ferguson, litigation which perpetuated the immoral racialist logic of Jim Crow and guaranteed legally-enforced segregation of public education for another half-century; Wickard vs. Filburn, litigation which badly damaged the constitutional bulwark of federalism, green-lighted the powers of statism and fostered centralized control of the US economy and culture; Everson v. Board of Education, litigation which undermined both federalism and faith by incorporating the Establishment Clause; Engel v. Vitale, litigation which undermined faith and morality by banning prayer in public schools; Roe vs Wade, litigation which weakened federalism, expanded judicial rule-by-legal imagination, destroyed the sanctity of life as an abiding tenet of Americanism and constituted the indisputable proximate cause of the deaths of tens of millions of prenatal infants; Environmental Defense Fund vs, Ruckelshaus, litigation which sustained a legally-arbitrary, scientifically-unfounded, politically-driven, bureaucratically-inspired decision of the unconstitutional Administrative State to ban the pesticide DDT, a ban which, in turn, incited a world-wide ban on the use of DDT for malaria control, causing, over the ensuing half-century, the deaths of tens of millions of people, mostly children; NFIB vs. Sibelius, litigation in which 5 Justices rewrote an unequivocal Congressional statute so as to magically convert an unconstitutional penalty into a tax which, itself, was both arguably unlimited and arguably unconstitutional; Obergefell vs. Hodges, litigation in which two once-respected litigators (Boies and Olsen, pictured above in L&L's colorful header) became social justice warriors who persuaded the Supreme Court to ignore, sweep aside, undermine and substitute their personal opinion for the teachings of 3500 years of Jewish monotheism, 2000 years of Christianity, and 400 years of colonial and American jurisprudence, tradition and moral teaching.

All of his (and so much more) is a part of what lawyers and litigation in America hath wrought. It is all a part of the "cultural history of lawsuits in America." All of it shows, contrary to what Hoffer argues, that litigation has not "defined the American nation" but, rather, has "redefined the American nation," and in a malign, not the benign way which Hoffer would have his readers believe.

No one should waste time reading "Litigation Nation." It's very poor history and not-so-subtle political propaganda.

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Paladin
on April 18, 2020 at 12:02:10 pm

Now here's a TRO opinion in a truly "great American lawsuit" with a line in the decision that should live in the annals of American legal history:
"The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is “essential,” so is Easter."
https://www.courtlistener.com/recap/gov.uscourts.kywd.116558/gov.uscourts.kywd.116558.6.0.pdf

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Paladin
on April 12, 2020 at 08:15:36 am

Apparently this site has stopped posting replies. On Saturday morning and afternoon, April 11, I posted two replies to Gabe's comment. Neither has been posted as of 8:15 EDT, Sunday, April 12. I have had a similar experience in posting replies to other essays.

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Paladin
on April 11, 2020 at 11:28:43 am

Paladin, perhaps you could have simply stated that The End Game of the Sexual Revolution, for the atheist materialists, is the objectification of the human person, and leave it at that.

“When God Is denied, human Dignity disappears.” Pope Benedict XVI

This is true, whether we are residing in public, or in private.

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Nancy
on April 11, 2020 at 13:51:04 pm

“The first casualty of war is truth.”

“But he was wounded for our iniquities, he was bruised for our sins: the chastisement of our peace was upon him, and by his bruises we are healed.”

“Surely he hath borne our infirmities and carried our sorrows: and we have thought him as it were a leper, and as one struck by God and afflicted.”

https://www.google.com/search?q=picture+of+Mary+holding+The+Crucified+Christ&ie=UTF-8&oe=UTF-8&hl=en-us&client=safari#imgrc=dGW7YXqnMYOFIM:

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Nancy
on April 13, 2020 at 09:18:44 am

My last two substantive comments were replies to Gabe's comment on April 11. My two substantive comments replying to Gabe were written and posted by me on April 11. Yet L&L did not actually put them up on the screen so that viewers could read them UNTIL this morning, April 13. My comments were posted by me two days earlier. They were timed so that readers might actually read them. L&L's poor practice, its failure to TIMELY post reader comments, undermines the basic purpose of inviting reader comments and means, very likely, that my considerable effort was wasted.

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Paladin
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on April 10, 2020 at 08:32:16 am

[…] essay first appeared in Law & Liberty on April 10, 2020 (here) as “A Paean to the Great […]

on May 27, 2020 at 06:25:13 am

[…] Thanks Mark Pulliam for mentioning me in the course of reviewing a book that takes a rosier view of lawsuits than I do [Law and Liberty] […]

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