Nice Suit

MILD-MANNERED RADICAL: Jay Feinman, law professor at Rutgers-Camden, chronicles the conservative campaign to make it tougher for people to take corporations to court. Photo By: Bruce Schimmel

Bring on the lawsuits, says Jay Feinman, who claims tort reform is a sham.

by Bruce Schimmel

I thought Jay Feinman would be pissed. His latest book, Un-Making Law: The Conservative Campaign to Roll Back the Common Law, packs so much outrage that it practically spews bile over corporations on nearly every page.

I met Feinman just after the election as the conservatives got a lock on the executive and legislative branches. They're looking to reshape the courts. It isn't just Roe v. Wade that's on the line. Everything important — from election law, to consumer rights, to punishing polluters — could be rolled back. For Feinman, this is a horror.

But instead of a dragon, I got a Buddha. Compact, tweedy, soft-spoken — Feinman had the gentle demeanor of the supremely confident. Here, from his cluttered office at Rutgers-Camden, the distinguished law professor could marshal his facts like soldiers preparing for an attack.

And for Feinman, the conservative attack is one so coordinated, intense and well-funded that he calls it a "movement" with an "agenda to reduce the ability of government to promote the common good."

In barring the courtroom door to ordinary people seeking justice under the false rubric of tort reform, corporations have turned public sentiment against trial lawyers. (For the record, Feinman is not a trial lawyer.)

The popular image of plaintiff's lawyers is of slimy whiners digging for gold. In the conservative ideology, lawsuits are a drag on the economy and expensive litigation is way out of hand. Not so, says Feinman. "What's out of hand," says Feinman, "is the media misreporting of tort reform. And that's not by accident. The tort reform movement has been very successful in convincing people there's more of a problem than there is."

Feinman wheels out the classic example of (so-called) "Jackpot Justice." It's the infamous McDonald's case, where a clumsy driver reputedly burned her hand and made a killing by taking the hamburger-maker to the cleaners.

"What really happened is that a 81-year-old woman passenger — not the driver — got third-degree burns. She spent a week in the hospital and needed multiple skin grafts." The woman offered to settle for her medical bills alone. And it was only after the corporation said no that she asked for her day in court.

This was a good thing for her, says Feinman, and good for everyone because it addressed a genuine hazard.

"McDonald's had received over 500 complaints previously about coffee they keep 20 to 40 degrees hotter" than other fast-food restaurants, says Feinman. "McDonald's knew they had a problem, but did nothing. They kept their coffee that way because it would stay hotter, longer — and because it smelled better. It was a business decision."

As for high medical-malpractice rates forcing doctors out of work, Feinman says the jury is still out. Part of the cause for rising malpractice rates, says Feinman, is that the value of insurance companies' stock portfolios — like everyone else's — has gone down.

Further, there's little evidence that lowering caps on court awards will actually decrease premiums. There's recent evidence, he says, that capping court awards in other states has not led to appreciably lower rates.

The tort system at present is "not perfect," Feinman admits. Sometimes lawyers are too aggressive, and juries just get it wrong. "But what the tort reform movement wants to do is throw out the baby with the bathwater."

Limiting an individual's right to sue, says Feinman, further tips the field toward corporations who already have tremendous power. Unchecked by litigation, corporations are more likely to let their gas tanks explode and their oil tankers leak.

"What the conservatives and corporations and right-wing politicians are selling is the idea that you can't depend on the courts for justice," says Feinman. "But justice comes from the law — and one way that justice happens is when individuals stand up, assert their rights and the court decides who's right and wrong. In a democratic society, the law belongs to people, and the conservatives want to limit their day in court."