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When Victimhood Runs the System

by Doug Bandow

This article originally appeared in the New York Times.

The ink was barely dry on the tobacco settlement last June, when Richard Scruggs, a Mississippi trial lawyer who represented 25 states in talks with the industry, acknowledged in The Wall Street Journal that the fees he and his colleagues would end up collecting might seem "a little obscene."

Many of the 165 or so lawyers and firms involved in the tobacco litigation have also participated in other mass torts and have grown used to fees that are "a little obscene." But with a total settlement of $368.5 billion, even an overall 3 percent payout would run to $11 billion.

The tobacco lawsuits represent the demise of traditional negligence law. Consumers eschew responsibility for their own actions, liability lawyers search for deep pockets, legislators overturn standard notions of fault and state attorneys general prostitute their offices in search of publicity. Liability, no less than war, has become a continuation of politics by other means.

One tactic has been to create faux civil rights, the violation of which incurs liability for damages. Litigation then can become a tool of extortion. Companies that depend on responsible employees will naturally shun an alcoholic or drug addict-- yet to do so now risks liability under the Americans With Disabilities Act. Walter Olson, author of "The Excuse Factory" (Free Press, 1997), points to rulings that a shoplifter was entitled to a job as a longshoreman because his thefts were minor, that a pilot deserved to be rehired after flying while drunk and that a wife-beating firefighter qualified for reinstatement with back pay after claiming to be mentally ill.

Equally pernicious has been the steady subversion of more traditional liability rules, eliminating the necessity of both requiring the plaintiff to act responsibly and finding the defendant to be at fault. Cases involving irresponsible defendants -- burglars and drunks, for instance -- have passed into legend. Now, smokers join the pantheon of those to be protected from their own foolishness.

As the risk of large, meritless judgments has risen, so has the incentive to settle, rewarding plaintiffs who file suit merely in hopes of being bought off.

The pervasive belief in victimhood has led to excessive judgments even when defendants have only been slightly at fault. Juries act as if they were politicians, promiscuously giving away other people's money. Many apparently believe that their job is not to assess fault and harm but to redistribute wealth. The law has become yet another program of the welfare state.

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The pervasive belief in victimhood has led to excessive judgments even when defendants have only been slightly at fault. Juries act as if they were politicians, promiscuously giving away other people's money.

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Most serious are the cases in which juries impose liability despite no demonstration of fault. Lawsuits involving asbestos and so-called multiple-chemical sensitivity have proved to be enormously successful for creative legal minds. It's not that the plaintiffs aren't sometimes really hurting, but that they have no proof-- at least not in the common meaning of the term-- that the individuals or companies being sued are responsible for their ills.

This is evident in the case of silicone breast implants. For years, there was no claim of harm. But as the country's liability sweepstakes picked up, some women with implants suffered health problems.

Dr. Marcia Angell, executive editor of The New England Journal of Medicine, explains in her book, "Science on Trial" (W. W. Norton, 1996), that "any woman over 25 could develop" such symptoms. But the drumbeat of publicity, inflamed by the trial bar, convinced many women that breast implants were to blame.

The havoc wreaked by the ensuing legal deluge exceeds that of the tobacco litigation. The silicone implant industry has been destroyed. Producers of other silicone-based products, like pacemaker wires and artificial joints, became more cautious. Frightened women had their implants removed.

Yet evidence continues to mount that implants do not cause disease. The latest finding, published in The Journal of the American Medical Association in May, indicated that women with implants generally engaged in riskier behavior than did women without implants. Such factors, the study said, "potentially make these women more or less likely to develop certain diseases." This means that even a correlation between implants and ill health would not demonstrate causation.

But there is no correlation. In 1996, a Federal District Judge in Oregon dismissed 70 claims, concluding that the case purporting to show a link between implants and systemic illnesses did not meet a sufficient scientific threshold to warrant presentation to a jury. Numerous studies have found no or minimal connection between implants and disease. And most court cases have found no liability.

A market system will work only if people who have been injured by the negligence of others are able to receive redress. But that doesn't mean turning American courtrooms into legal lotteries, where fault need not be shown in order to win a big prize. Legislators need to insure that damages are awarded based on probabilities, not possibilities, and that the system rewards injured parties rather than entrepreneurial lawyers. Congress shouldn't approve the legislation that's necessary to implement the abusive tobacco settlement.

Policy makers must also revisit laws that have created new causes of action, penalizing morally blameless and often socially beneficial conduct. The law must be rescued from activists who have turned it into a tool of politics.