The Case Against Lawyers

“The Case Against Lawyers” by Catherine Crier (Broadway Books, 2002)

A few weeks ago, my wife had to make a sudden appointment with the doctor. Since she had not returned when expected, I called the doctor’s office to determine whether she was still there, whereupon the receptionist told me that HIPAA regulations forbade her to divulge even if my wife had an appointment. Five minutes later, another doctor’s office phoned our house to tell me – with a blatant disregard for patient confidentiality, not even stopping to verify my mother’s maiden name – that an appointment had been made for my wife the following week.

To the layperson, such an everyday example reveals the law gone mad – self-contradictory, unenforceable, expensive regulations in conflict with the interests of the parties concerned. In “The Case Against Lawyers” Catherine Crier, a former judge, and now host on Court TV, presents her case by documenting a rich litany of such absurd examples arising from the increasing influence of the legal profession. This leads her to make savage indictments of the whole political system, in which complex and inconsistently applied regulation is encouraged by a conspiracy of survival-focused bureaucrats, politicians susceptible to influence, their friends the lobbyists, and greedy and opportunistic lawyers. The book makes compulsive and very sobering reading.

When did this nation of pioneering entrepreneurialism, and faith in sound judgment, evolve into one guided by the belief that risk has to be eliminated, that everyone has rights rather than responsibilities, and that any grievance one can show – whether imaginary or not – can be remedied by a generous monetary recompense? Crier cites de Tocqueville liberally, notably his prediction of the U.S.A.’s risk of becoming regulation-obsessed, and traces the trend away from the restricted federal powers that the nation’s founders envisioned.  However, she offers no other guidance as to how the clamor for “social justice” via litigation, the claim for law as an instrument of social engineering, or the cult of victimization originated. She states that regulation will “bury” the United States, but is vague about the threat that the class-action assault on corporate coffers represents for our economic competitiveness. She makes few comparisons with other systems, although the regulations of the European Union are probably more onerous than ours. Her suggestions for how we get out of this mess are generally well-put, but her call for a return to “shared values and community control” as a substitute for hyperactive law will surely not work for the mobile, multi-cultural America of this century.

Moreover, she is ambiguous about business. Her main grouse is against lawyers, politicians, and bureaucrats, but she has plenty to say about the Enrons of this world (who have of course done nothing to engage the sympathy of the public towards businesses in general in the face of the “rapacious lawyer” issue). While companies often appear as victims in the first part of the book, she lists “corporations” as part of the enemy in her final chapter. To what extent are companies just playing the system to survive, to what degree do we need to be protected from truly malicious corporations, and which businesses are managing to thrive by calling the class-action attorneys’ bluff? A more subtle response here would have been useful. And of course there are good laws – and good lawyers – to be found.

Crier’s message is not new: readers may recall Philip Howard’s “The Death of Common Sense” of 1994, for example. But the problem is no doubt getting worse, and the system is not even working where it should.  You may recall the recent story of how OSHA missed out on recurrent safety transgressions in the case of McWane Inc., the New York piping company. And a couple of weeks ago, I read about the class-action lawyer who has agreed to accept $20 million from the asbestos company he was suing. If you think that is ethical, and constitutes progressive evidence of how improved “social justice” is in effect, don’t bother to read this book.

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