Preferred Citation: Burke, Thomas F. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society. Berkeley: University of California Press, c2002 2002. http://ark.cdlib.org/ark:/13030/kt9n39q5pr/ LAWYERS, LAWSUITS, AND LEGAL RIGHTS The Battle over Litigation in American Society THOMAS F. BURKE UNIVERSITY OF CALIFORNIA PRESS BERKELEY LOS ANGELES LONDON 2002 ― ― [Dedication] To my mom, Juanita Burke, whose love of learning was the beginning of all this Preferred Citation: Burke, Thomas F. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society. Berkeley: University of California Press, c2002 2002. http://ark.cdlib.org/ark:/13030/kt9n39q5pr/ ― ― [Dedication] To my mom, Juanita Burke, whose love of learning was the beginning of all this ― ― CONTENTS Acknowledgments ix INTRODUCTION 1 1. THE BATTLE OVER LITIGATION 22 2. THE CREATION OF A LITIGIOUS POLICY 60 The Americans with Disabilities Act 3. A FAILED ANTILITIGATION EFFORT 103 The Struggle over No-Fault Auto Insurance in California 4. A SHOT OF ANTILITIGATION REFORM 142 The Vaccine Injury Compensation Program 5. UNDERSTANDING THE LITIGATION DEBATE 171 Notes 205 Index 261 ― ix ― ACKNOWLEDGMENTS This book is the end of a long and mostly enjoyable journey, eased by the support of several generous institutions and graced most of all by the friends I met along the way. The first interview I conducted for this book was in San Francisco, the last in Stockholm, Sweden. In between were stops at such varied locales as Charlottesville, Virginia, Simi Valley, California, Turton, South Dakota, and of course, Washington, D.C. I am indebted to the many people, famous and not so famous, who kindly agreed to be interviewed. This book began as a dissertation at the University of California, Berkeley. I spent much of my time as a graduate student at Nelson Polsby's Institute for Government Studies, a marvelous place that provided generous financial support, camaraderie, intellectual stimulation, and room for my books. I learned much from my fellow graduate students at Berkeley, especially Sandra Bass, Jon Bernstein, Alyson Cole, Paul Edwards, Eric Patashnik, Ron Schmidt, Craig Thomas, Elaine Thomas, Christine Trost, and Kathy Uradnik. My friendships with Nate Teske and James Martel sustained me both at Berkeley and beyond. Among the faculty, I especially want to thank Sandy Muir, Judy Gruber, Bruce Cain, Laura Stoker, and Jack Citrin, as well as my extraordinary thesis committee: Martin Shapiro, Hanna Pitkin, and Nelson Polsby. Thanks above all to my chair, Robert Kagan, who has been an unending source of advice and support. In the unlikely event that an academic advisor Hall of Fame is created, I will make sure he is one of the first inductees. I was fortunate enough to be a Brookings Research Fellow, which entitled me to spend 1993– 94 in Washington, D.C., at the Brookings Institution, another source of both financial and intellectual support. Thanks to Robert Katzmann, Pietro Nivola, John Kingdon, Margaret ― x ― Weir, Constance Horner, and Tom Mann, as well as my "classmates," Doug Reed, Valerie Heitshusen, and Dan Tichenor. My lucky streak continued after graduate school, when I became a professor at Wellesley College, just outside Boston, a great environment in which to write and teach. Among many friends at Wellesley I particularly want to thank Adrienne Asch, Brock Blomberg, Roxanne Euben, Jeff Gulati, Kyle Kauffman, Sally Merry, Craig Murphy, Kathy Moon, Rob Paarlberg, Ellie Perkins, and Alan Schechter. Susan Silbey is a friend and mentor who teaches me something every time I am fortunate enough to be in her company. Moreover, she provided her good judgment about my manuscript at a crucial point. My Boston-area friends kept me sharp and helped even out the peaks and valleys of academic life: Nancy Aykanian, Barb Connolly, Keith Bybee, John Gerring, Anna Greenberg, David Hart, Dan Kryder, Martin Levin, Paul Pierson, and Steve Teles. Gerring, Greenberg, Gulati, and Kevin Esterling all nursed me through the quantitative roll-call study that appears in chapter 5, but they are not to blame for any statistical sins I may have committed. I had wonderful research assistance at Wellesley from, among others, Ruth Zeable, Lydia Chan, Cortney Harding, Christine Ho, and Belinda DelaCruz. I thank Jane Choi, whose research assistance was supported by the National Science Foundation Awards for the Integration of Research and Education Program (award no. 9873771). Thanks for superb administrative assistance to Cyndy Northgraves and Sue Lindsey. A fellowship with the Robert Wood Johnson (RWJ) Scholars in Health Policy Research Program brought me back to Berkeley and allowed me to put the finishing touches on this book in the California sun. I thank Nathan Jones and Claudia Martinez, the program's Berkeley site administrators, for their hard work, dedication, and flexibility in responding to the diverse needs of RWJ scholars, and I thank the Robert Wood Johnson Foundation for creating this generous program. I am grateful to Chuck Epp and Frank Baumgartner, my University of California Press reviewers, whose comments stimulated major improvements in the book. Thanks also to Steve Rotman, a lifelong friend who contributed his razor-sharp editing skills (to only two chapters, alas), John Skrentny, who provided a thorough and helpful critique of an early draft, and Lauren Leve, whose moral support was invaluable. And thanks to my family, who have patiently stood by while this manuscript slowly, painfully at times, became a book. ― 1 ― INTRODUCTION Although Alvin Laskin grew plants for a living, no one would ever accuse him of being an environmentalist. Yet Laskin's entrepreneurial efforts managed to create employment for many environmental scientists—and hundreds of lawyers. In the early 1970s, when Laskin's Ohio nursery business slumped, he found a more lucrative trade: used oil. Laskin bought the oil from factories and sold it for a variety of uses, particularly dust control. Most of Laskin's old oil presumably ended up with his customers, but hundreds of thousands of gallons of the stuff were inadequately stored in corroded tanks and ponds. By the late 1970s, when Ohio officials first investigated the Laskin Poplar storage site, a chemical sludge containing lead, dioxin, and PCBs had leached into the soil and threatened the groundwater.[1] An extensive cleanup was required, eventually costing about $32 million.[2] The Environmental Protection Agency, which administered the cleanup, would have been happy to bill Mr. Laskin, but he was "judgment proof" —too poor to make it worth going after him. So instead the EPA sued seven of Mr. Laskin's largest customers, big corporations who had either bought or sold the waste oil. That was just the beginning. The seven corporations decided to sue Laskin's other customers, eventually more than six hundred, to help pay for the bills. The federal government became involved in these lawsuits as a third party. Then the big companies sued each other. Later some of the companies sued their insurers. At one point the disputants literally ran out of lawyers in the Cleveland area to handle all these suits and countersuits.[3] It took five years for the first group of defendants to settle, and four more years for most of the rest.[4] In 2001, seventeen years after the first lawsuit, lawyers were still battling over who would pay for Alvin Laskin's environmental sins.[5] ― 2 ― LITIGIOUS PEOPLE/LITIGIOUS POLICIES Stories like this, about litigation seemingly run amok, are common in American popular culture. Anyone who regularly reads a newspaper or watches television has heard, for example, the story of Stella Liebeck, the woman who sued McDonald's after she burned herself with its coffee.[6] Through the media we encounter despondent New Yorkers who jump in front of subways and sue for their injuries, students who sue their professors for bad teaching, parents who sue because their toddlers came to blows on a playground, golfers who sue after being hit by errant tee shots, nonprofit agencies that sue to collect from wavering donors, snackers who sue when their overcooked Pop-Tarts catch fire, prisoners who sue to get chunky peanut butter instead of the smooth kind, game show contestants who sue over a disputed question, and overweight people who sue movie theaters because their chairs aren't sufficiently spacious.[7] There are also "urban legends" that radiate out from the media with ever more outrageous (and almost entirely fanciful) claims, of handymen who sue after their ladders slip on cow manure, restaurant customers who collect thousands of dollars after eating "Kentucky Fried Rat," and psychics who assert that CAT scans withered their powers and receive hundreds of thousands for their troubles.[8] These are not simply amusing vignettes. Although they appear in the media as unconnected anecdotes, a serious theme underlies these 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."[9] This theme is so readily accepted that such stories resonate even when demonstrably false. Meanwhile, careful academic research that debunks the notion of a "litigation explosion" in the United States fails to make much of an impression. [10] Nearly everyone, a few lawyers and legal academics to the contrary, seems to believe that litigation is out of control. Explanations for litigiousness are eagerly pronounced. Many blame greedy lawyers, always an easy target.[11] Others point to changes in American culture, with its growing emphasis on individual rights and neglect of the common good. Americans, it is said, have become whiny victims who sue at the first opportunity.[12] These explanations share a common feature: they focus on the individual's decision to sue.