Un-Making Law: The Conservative Campaign To Roll Back The Common Law.

Vol. 14 No.10 (October 2004), pp.819-822

UN-MAKING LAW: THE CONSERVATIVE CAMPAIGN TO ROLL BACK THE COMMON LAW, by Jay M. Feinman. Boston, MA: Beacon Press, 2004. 240pp. Hardcover. $26.00. ISBN 0-8070-4426-1.

Reviewed by Daniel Levin, Department of Political Science, University of Utah. Email: daniel.levin@csbs.utah.edu.

Not so long ago, Hilary Clinton was either applauded or ridiculed, depending on the red or blue hue of one’s zip code, for alleging that a “vast right-wing conspiracy” was behind investigations into her and her husband’s past business and personal dealings. Well, that “vast right-wing conspiracy” has moved onto the business of undermining America’s judicial system in an active campaign to return to the archaic and cruel standards of legal conduct that typified the common law one hundred years ago, when robber barons trod the earth and the widows and orphans of their workers were abandoned to the streets. Fortunately for America’s widows and orphans, Jay Feinman is on the case. In UN-MAKING LAW, Feinman has written a polemic to alert us all to the efforts of right-wing ideologues, corporate interests and various and sundry others to reduce tort awards, protect private property from governmental regulation, and to ensure that companies may dictate the terms of contracts with workers and consumers. Feinman’s revelations will shock anyone who has failed to read a newspaper or watch a television news show any time in the last twenty years.

If I have caricatured Feinman’s argument above, it is because Feinman’s language is itself so overheated. I offer a few representative sentences from the Preface and Introduction: “Today, this right-wing movement aims to un-make the entire common law, the laws of property, contracts, and torts” (p.vii). “[T]his campaign to transform the law is not really conservative at all - it is radical. In mounting this campaign, conservatives reject the main currents of American law that have developed over the past hundred years” (p.ix). “The changes are sweeping and pervasive, but only small portions of this transformation are well known, either among legal professionals or the general public” (p.ix). “The radical conservative vision embodies ideas that are extreme in their rejection of most of American law, outmoded in their adoption of ideas that were discarded almost a century ago, and simply wrong in their attempt to resurrect discredited legal principles” (p.4). “If this vision comes to pass, the kind of government that has developed throughout the twentieth century would be eviscerated” (p.11).

Feinman’s book is the kind of polemic that has been so popular for the past few years on both the right and left sides of the political divide. In tone and purpose, it is most similar to its ideological opposite, Phillip K. Howard’s THE DEATH OF COMMON SENSE. Like Howard’s book, those who agree with UN-MAKING LAW will find it persuasive in its use of cases and anecdotes; those who disagree will find it shallow and rhetorical. Academic [*820] students of law and society will mostly find it simplistic. To a political scientist, the idea that individuals and groups protect their economic interests will hardly come as a surprise, and one need not posit a massive and secretive ideological crusade to explain the tort reform or takings movements. Indeed, however sympathetic one may be to the victims of medical malpractice or corporate negligence, it is only natural that doctors and business groups would respond to the success of consumer advocates and trial attorneys in expanding the definition of legal liability and enlarging the pots of money awarded as the result of a successful lawsuit by seeking to limit their access to their courts.

With his picture of a singular, comprehensive conservative juggernaut pursuing its ideological agenda, Feinman does not acknowledge that the regular exercise of legitimate self-interest might lie behind a number of the causes which he identifies. For instance, he has little patience for any nuances within the dynamics of the tort reform movement. Physicians, for instance, are a special case. Malpractice insurance rates have caused many doctors to change their practice, moving from solo practice and small partnerships to significantly larger partnerships and corporate health “networks,” while other physicians have left higher risk specialties like obstetrics. Physicians view malpractice reform in primarily defensive terms; it is their last attempt to regain their autonomy as professionals—perceived loss of autonomy, and anger at attorneys’ “second-guessing” their judgment underlie most physicians’ support of limiting malpractice awards. But those same physicians care little about reforming product liability laws and thus cannot be properly considered an integral part of a larger effort to reform all of tort law, much less a wholesale reformation of the entire common law.

Feinman’s real agenda is populist, and he endorses any legal practice that favors individuals, government, and small business over mechanisms which might advantage corporations or the wealthy. This causes him to lump in legal practices that favor corporations, like the boilerplate language found in many contracts, known as contracts of adhesion, along with the more ideologically driven property rights movement. Feinman writes that “A key step in the conservative campaign is creating rules about how contracts are made that make it easier for large businesses to bind consumers, employees, and even small businesses to contracts on their own terms through the use of standard forms” (p.78). But one major reason that large businesses use boilerplate language is because they serve so many people uniform language is necessary simply to go about their own business. Referring to a Supreme Court decision of which he disapproves, Feinman tells of the unfairness of Carnival cruise lines requiring customers to sue it in Florida courts, rather than the state in which they reside. While Feinman points out that this may be costly or inconvenient for the plaintiffs, it would be just as costly, if not more so, for Carnival to defend against lawsuits in all fifty states. Feinman does not even show that Carnival chose Florida because the state is particularly restrictive in its requirements for personal injury lawsuits; presumably it chose Florida because the majority of its cruises originate in the port of Miami. [*821] Because it favors a large corporation, Feinman portrays the provision as part of this larger conservative crusade, rather than as a reasonable way for a company to control its own legal costs.

The strength of Feinman’s argument lies in his use of cases and anecdotes, but this method also results in the book’s single greatest fault, its failure to state a clear vision of the proper limits of the law. While Feinman’s use of cases to illustrate the ebb and flow of expanded protections for consumers and workers makes for a thoroughly readable book, his focus on attacking the “radical, conservative vision” leaves a reader with little idea of what exactly he is for, other than some sort of golden age of the law that roughly corresponds with the 1970s. Feinman’s account lacks a systematic moral argument that would support the expansion of liability, in part because of his preference for short vignettes portraying virtuous plaintiffs who have suffered grievous harm at the hands of their doctors, employers or large corporations. This will engage many readers’ sympathies, but it does not provide a sufficient defense of the expansive modern theory of liability. Feinman not only fails to explicate a general positive theory, but he is so convinced that those arguing for rolling back tort law are motivated by ideology and self-interest that he fails to engage their own moral arguments, centered around long-standing American traditions favoring property rights and self-reliance. Many of these conservative arguments have a significant place within American culture and appeal to a substantial portion of the same public that will be sympathetic to the stories that Feinman tells. No one should ever expect American public opinion to be consistent, or even coherent, and a number of useful works have originated within the Law and Society movement, such as David Engel’s 1984 article, “The Oven Bird’s Song,” and Lawrence Friedman’s 1985 book, TOTAL JUSTICE, which have sought to understand this contradiction in a serious manner. Because Feinman is primarily interested in caricaturing his ideological opponents’ positions, he neglects the important questions they raise about individual responsibility and the social cost of litigation.

UN-MAKING LAW is a well-written and generally entertaining polemic written with the general public in mind. It will no doubt outsell many more academic books in the field. But its simplistic and one-sided assessment of the multiple movements to curtail expanded tort liability and to roll back the administrative state verges on conspiracy theory and undermines its larger mission of defending a modern liberal vision of the common law against conservative critics. Scholars of law and society are unlikely to find much new in this volume. But they may find it useful in the classroom, paired with Phillip Howard’s THE DEATH OF COMMON SENSE, as part of the contemporary debate over the proper limits of the law.

REFERENCES:

Engel, David M. 1984. “The Oven Bird’s Song: Insiders, Outsiders and Personal Injuries in an American Community.” 18 LAW AND SOCIETY REVIEW 551-82.

Friedman, Lawrence M. 1985. TOTAL JUSTICE. New York: Russell Sage Foundation. [*822]

Howard, Lawrence M. 1994. THE DEATH OF COMMON SENSE: HOW LAW IS SUFFOCATING AMERICA. New York: Random House.

************************************************************