Big business has been going after plaintiff lawyers since the 1980s. Why? 90% of antitrust cases come from private attorneys, restructuring everything from real estate to college sports to big tech.
I’m super grateful for my plaintiffs attorney, even though we were forced into arbitration, we still won the case. So glad to see these case’s being brought up for the people. Rectifying 40+ years of learned helplessness is a very welcome sign indeed. Thanks Lee and Matt you guys are the best!
As one of the Plaintiff's lawyers who subscribes here, I liked this article. However, I think the litigiousness and reliance on private rights of action is bad for American governance. I think Matt has also raised this point, on which I agree with him, that the 'left' (there has never been an American 'left' in the European sense that had any meaningful power) turn to litigation and consumer rights in the 1970's in lieu of governance was how the Clintons et al were able to ratify Reaganism; why govern when you can leave it to (the increasingly conservative/neoliberal-stacked) Courts.
Plaintiff's attorneys in personal injury work on contingency, but in many other arenas they don't, and financing a case gets incredibly expensive and leaves enforcement of many of these private rights of action to the well-heeled upper middle class. I had to turn down a blatant FMLA violation the other day because my boss said it simply didn't make business sense to take the case on contingency and the woman couldn't pay hourly. The employer will likely get away with a blatant violation of the FMLA because they did it to a poor person.
TLDR: plaintiff's attorneys are good, but they're not a replacement for governance, and I don't believe a single conservative who says these kinds of things and then votes for do-nothing shitheels in Congress.
We edited out a section on how Nader's consumer revolution was, perversely, the Chamber's ideal foil, because they shared a resentment of public governance and valued consumer welfare above all else. The Chamber and its allies, including Justice Powell, used that to effectuate a substantive and procedural narrowing of the law that made it harder to bring individual and class action claims. Which is to say, I don't disagree, and it's an interesting narrative that we didn't get into much here (although Matt writes about it in Goliath.)
That's certainly true, but I'll believe it when I see it that there's any appetite from conservative lawyers to change any of this. I am as cynical and jaded at the feckless suck ups that populate the Democratic elite lawyers club (many of them are my friends - as I've said in the Discord), but every conservative lawyer I've ever met understands very clearly why there is no conservative Plaintiff's bar - it doesn't pay as well, and they like it that way.
I think the fact that as a plaintiff you usually have to take financial risk upfront to even get into court discourages a lot of poorer people... Who may often be in an even worse financial situation as a direct result of the violation in question (e. g. wrongful termination) or who may already have been intimidated by fees and threats of the company they are facing, which may have time, money and other resources at its disposal at an order of magnitude the potential plaintiff can only dream of. This is a major cause to feel helpless in the first place. And if you once had a bad experience in court that just piled additional costs on you, you'll never try again. I wholeheartedly agree with David: private court cases can be no substitute for a well funded regulatory machine, which can by the way help fighting learned helplessness with public information campaigns. I feel empowered just seeing and listening to people like Lina Khan, and I don't even live in the US 😄
Excellent overview. Very informative and thought-provoking. I hope it will also serve as a pep talk and encouragement to be bold for plaintiff lawyers. Thank you, Lee Hepner and Matt Stoller!
Thank you, Lee, for your emphasis on learned helplessness. I first found out about it when I worked for a psychology professor in his lab running pigeon experiments right after college 50 years ago.
Another professor was running learned helplessness experiments on dogs. I'll spare folks the worst aspects, but the result was that after being blocked from escaping a painful situation for long enough, the dogs would sit and tolerate the pain rather than escape even when there was no obstacle and they could easily get out. It was horrible.
The vast majority of Americans are suffering from malaise and despair due to learned helplessness because they see no way out. And, the truth is, they don't have a way to escape. They are so busy trying to survive, feed their families, keep a roof over their head, and pay their other bills that I don't think it's possible to rouse them to action.
And now, for the rest of the story. The plaintiff lawyers were one of the best organized and powerful lobbyists in state legislatures by the 1980s. The Texas trial lawyers were the most notorious and corrupt, but Texas wasn’t the only state with trial lawyers who made a career out of suing hapless businesses. They’d target a company just hoping for a quick and easy settlement from the insurance company. The gunslinger mentality turned America into one of the most litigious-happy countries in the world. A backlash was inevitable.
The McDonald’s hot cup of coffee case prompted a much more serious discussion of what kind of society we wanted to be: where people take responsibility for their own actions and caveat emptor; or a utopian, risk-free environment where somebody other than the actor involved must be held responsible for the “accident.” I use scare quotes because there is no such thing as an accident. It is the direct result of someone doing something stupid, like putting a hot cup of coffee between your legs in a moving vehicle.
Unfortunately, the utopians won the argument. Behind every silly disclaimer on every item we buy--Warning! The parts enclosed to assemble the chainsaw are a potential choking hazard--is a trial lawyer laughing all the way to the bank. The learned helplessness can also be laid at the feet of the trial lawyers and the politicians in their pockets who constantly drive home the point that we have no agency in our actions. Who killed those innocent children in Tennessee, the gun or the nutcase pulling the trigger? Trial lawyers sue the gun manufacturer because that’s where the deep pockets are.
I’m all in when it comes to breaking up monopolies, stopping unfair practices, holding people responsible for their actions and enforcing the laws on the books. Count me out for the ambulance chasers. That said, there was one good unintended consequence that came out of the McDonald’s case. I have six cupholders in my car, and that’s just in the two front seats.
Good point - it isn't black and white. Some will always game the system but there are those who are doing good, and you'll never read about them.
I think if you saw the photos of the children in the aftermath you would have a different opinion about the types of weapons we allow, the insane quantity, the absence of mental healthcare, and the lack of non-gun owners rights, who would rather their neighbors and fellow citizens weren't packing deadly weapons in public. I'm looking forward to heavy gun manufacturer litigation - then take on the military industrial complex.
Marianne Williamson has it right - we need a department of peace - a peace industrial complex. Take those trillions of dollars of our tax money from wars and weapon manufacturing and provide free healthcare, including mental health, for all citizens so we may potentially create a compassionate America, one we can be proud of. Imagine that.
Some good points here... I also think the deluge of legal text that comes with every product, that no one reads and that shields a company from all kinds of reasonable demands (e. g. arbitration clauses for ticket master) is a direct result of this culture. This jungle gets thicker all the time, continuously raising the hurdle for legitimate litigation. I personally often feel like I waive all my rights when I click to agree to some legal text I don't have time to read all 27 pages of. In the long run, companies win this way.
I appreciate your perspective. I agree that there are innumerable examples of this having gone way overboard, to the point of being "boy who cried wolf" counterproductive. For example, does anybody pay attention to those carcinogen warnings you see everywhere in CA? If there were a real risk, you'd never know.
Is there a way to avoid throwing the baby out with the bath water? How can we facilitate justice, in the sense of empowering ordinary people to take on powerful interests when they've been legitimately harmed, without opening the floodgates to extortion-through-nuisance litigation? There are obviously political hurdles to implementing any such changes. But what would your "utopian" end state look like?
Please feel free to share a link to anything you've read that covers this instead of responding yourself. No need to recreate the wheel.
A bit (OK a longer bit) of encouragement here after watching a slide into the wasteland for forty to fifty years. And also a bit of a refreshing reminder that the structure of American governance is not a complete gift to a ruling class. Yes, we need more from Congress to return power to the people but it’s not impossible. And I can see through this writing how lower-case conservatives who are concerned about individual rights and freedoms may find allies among those looking to empower the working class (I no longer see liberals as allies in this).
Good article. Thanks - a new appreciation for private litigation bias
"I’ll note that in no other area except plaintiff’s law would we decry entrepreneurs getting rich by doing good."
As I get older I'm thinking the only way to save the planet is through litigation (e.g., The Southern Environmental Law Center). And help the smaller players, including the fight to release Wayne Hsiung from prison (animal rights activist against factory farming).
Great article, Lee! The arbitration explosion is truly an enervating, choking scourge. It’s very useful to have your take on issues. Your writing is clear, understandable, and informative. Thank you very much for the history on how we got here and how we get out of it.
I can't read the WSJ poll. Of the "[h]alf of voters think life is worse than it was 50 years ago" did they do breakdowns on race and sex, cause I have to imagine there is some disparity there.
Excellent piece. Thanks for the research and writing. The Puck illustration is awesome! I come from a liability insurance perspective, from which I saw products liability law having a profound effect on how manufacturers make their products, judging their products on realistic liability standards, particularly those contained within the law of strict products liability, where liability is based on the design of the product, not the behavior of the manufacturer or others in the chain of distribution. Private lawyers brought those cases, usually on a contingent-fee basis, and they have expanded their presence in just about all facets of tort law. As such, in some quarters at least, bad corporate behavior is being checked by lawyers in private practice. Back when I was in the tort industry (1986 through 2017), chambers of commerce and others were crying for the repeal of laws deemed favorable to injured folks, which they continue to do, but with apparent little effect--except to disparage tort lawyers—but they keep coming up with new tactics. Plaintiffs’ lawyers--those protecting the public from harm by faceless corporations—continue to be essential to curbing corporate power, in whatever form it takes.
I’m super grateful for my plaintiffs attorney, even though we were forced into arbitration, we still won the case. So glad to see these case’s being brought up for the people. Rectifying 40+ years of learned helplessness is a very welcome sign indeed. Thanks Lee and Matt you guys are the best!
That was an interesting read Lee, and educational on many levels. For, I do relate to the Helplessness issue part.
Thank you for posting.
My name is NoBody, (1vs160)
As one of the Plaintiff's lawyers who subscribes here, I liked this article. However, I think the litigiousness and reliance on private rights of action is bad for American governance. I think Matt has also raised this point, on which I agree with him, that the 'left' (there has never been an American 'left' in the European sense that had any meaningful power) turn to litigation and consumer rights in the 1970's in lieu of governance was how the Clintons et al were able to ratify Reaganism; why govern when you can leave it to (the increasingly conservative/neoliberal-stacked) Courts.
Plaintiff's attorneys in personal injury work on contingency, but in many other arenas they don't, and financing a case gets incredibly expensive and leaves enforcement of many of these private rights of action to the well-heeled upper middle class. I had to turn down a blatant FMLA violation the other day because my boss said it simply didn't make business sense to take the case on contingency and the woman couldn't pay hourly. The employer will likely get away with a blatant violation of the FMLA because they did it to a poor person.
TLDR: plaintiff's attorneys are good, but they're not a replacement for governance, and I don't believe a single conservative who says these kinds of things and then votes for do-nothing shitheels in Congress.
We edited out a section on how Nader's consumer revolution was, perversely, the Chamber's ideal foil, because they shared a resentment of public governance and valued consumer welfare above all else. The Chamber and its allies, including Justice Powell, used that to effectuate a substantive and procedural narrowing of the law that made it harder to bring individual and class action claims. Which is to say, I don't disagree, and it's an interesting narrative that we didn't get into much here (although Matt writes about it in Goliath.)
"gets incredibly expensive and leaves enforcement of many of these private rights of action to the well-heeled upper middle class."
That's a function of the campaign to gum up the works. It shouldn't be this expensive.
That's certainly true, but I'll believe it when I see it that there's any appetite from conservative lawyers to change any of this. I am as cynical and jaded at the feckless suck ups that populate the Democratic elite lawyers club (many of them are my friends - as I've said in the Discord), but every conservative lawyer I've ever met understands very clearly why there is no conservative Plaintiff's bar - it doesn't pay as well, and they like it that way.
I think the fact that as a plaintiff you usually have to take financial risk upfront to even get into court discourages a lot of poorer people... Who may often be in an even worse financial situation as a direct result of the violation in question (e. g. wrongful termination) or who may already have been intimidated by fees and threats of the company they are facing, which may have time, money and other resources at its disposal at an order of magnitude the potential plaintiff can only dream of. This is a major cause to feel helpless in the first place. And if you once had a bad experience in court that just piled additional costs on you, you'll never try again. I wholeheartedly agree with David: private court cases can be no substitute for a well funded regulatory machine, which can by the way help fighting learned helplessness with public information campaigns. I feel empowered just seeing and listening to people like Lina Khan, and I don't even live in the US 😄
Excellent overview. Very informative and thought-provoking. I hope it will also serve as a pep talk and encouragement to be bold for plaintiff lawyers. Thank you, Lee Hepner and Matt Stoller!
A great article on the Karen slur which ties it to frustration over lack of agency and helplessness that many Americans feel today: https://journals.sagepub.com/doi/full/10.1177/1367549420947777
Hiiilarious! Nothing like a little history lesson on how not to be an asshole (apologize for the foul language)
Thank you, Lee, for your emphasis on learned helplessness. I first found out about it when I worked for a psychology professor in his lab running pigeon experiments right after college 50 years ago.
Another professor was running learned helplessness experiments on dogs. I'll spare folks the worst aspects, but the result was that after being blocked from escaping a painful situation for long enough, the dogs would sit and tolerate the pain rather than escape even when there was no obstacle and they could easily get out. It was horrible.
The vast majority of Americans are suffering from malaise and despair due to learned helplessness because they see no way out. And, the truth is, they don't have a way to escape. They are so busy trying to survive, feed their families, keep a roof over their head, and pay their other bills that I don't think it's possible to rouse them to action.
Stay safe out there, y'all.
And now, for the rest of the story. The plaintiff lawyers were one of the best organized and powerful lobbyists in state legislatures by the 1980s. The Texas trial lawyers were the most notorious and corrupt, but Texas wasn’t the only state with trial lawyers who made a career out of suing hapless businesses. They’d target a company just hoping for a quick and easy settlement from the insurance company. The gunslinger mentality turned America into one of the most litigious-happy countries in the world. A backlash was inevitable.
The McDonald’s hot cup of coffee case prompted a much more serious discussion of what kind of society we wanted to be: where people take responsibility for their own actions and caveat emptor; or a utopian, risk-free environment where somebody other than the actor involved must be held responsible for the “accident.” I use scare quotes because there is no such thing as an accident. It is the direct result of someone doing something stupid, like putting a hot cup of coffee between your legs in a moving vehicle.
Unfortunately, the utopians won the argument. Behind every silly disclaimer on every item we buy--Warning! The parts enclosed to assemble the chainsaw are a potential choking hazard--is a trial lawyer laughing all the way to the bank. The learned helplessness can also be laid at the feet of the trial lawyers and the politicians in their pockets who constantly drive home the point that we have no agency in our actions. Who killed those innocent children in Tennessee, the gun or the nutcase pulling the trigger? Trial lawyers sue the gun manufacturer because that’s where the deep pockets are.
I’m all in when it comes to breaking up monopolies, stopping unfair practices, holding people responsible for their actions and enforcing the laws on the books. Count me out for the ambulance chasers. That said, there was one good unintended consequence that came out of the McDonald’s case. I have six cupholders in my car, and that’s just in the two front seats.
Good point - it isn't black and white. Some will always game the system but there are those who are doing good, and you'll never read about them.
I think if you saw the photos of the children in the aftermath you would have a different opinion about the types of weapons we allow, the insane quantity, the absence of mental healthcare, and the lack of non-gun owners rights, who would rather their neighbors and fellow citizens weren't packing deadly weapons in public. I'm looking forward to heavy gun manufacturer litigation - then take on the military industrial complex.
Marianne Williamson has it right - we need a department of peace - a peace industrial complex. Take those trillions of dollars of our tax money from wars and weapon manufacturing and provide free healthcare, including mental health, for all citizens so we may potentially create a compassionate America, one we can be proud of. Imagine that.
Some good points here... I also think the deluge of legal text that comes with every product, that no one reads and that shields a company from all kinds of reasonable demands (e. g. arbitration clauses for ticket master) is a direct result of this culture. This jungle gets thicker all the time, continuously raising the hurdle for legitimate litigation. I personally often feel like I waive all my rights when I click to agree to some legal text I don't have time to read all 27 pages of. In the long run, companies win this way.
I appreciate your perspective. I agree that there are innumerable examples of this having gone way overboard, to the point of being "boy who cried wolf" counterproductive. For example, does anybody pay attention to those carcinogen warnings you see everywhere in CA? If there were a real risk, you'd never know.
Is there a way to avoid throwing the baby out with the bath water? How can we facilitate justice, in the sense of empowering ordinary people to take on powerful interests when they've been legitimately harmed, without opening the floodgates to extortion-through-nuisance litigation? There are obviously political hurdles to implementing any such changes. But what would your "utopian" end state look like?
Please feel free to share a link to anything you've read that covers this instead of responding yourself. No need to recreate the wheel.
Thanks
A bit (OK a longer bit) of encouragement here after watching a slide into the wasteland for forty to fifty years. And also a bit of a refreshing reminder that the structure of American governance is not a complete gift to a ruling class. Yes, we need more from Congress to return power to the people but it’s not impossible. And I can see through this writing how lower-case conservatives who are concerned about individual rights and freedoms may find allies among those looking to empower the working class (I no longer see liberals as allies in this).
Good article. Thanks - a new appreciation for private litigation bias
"I’ll note that in no other area except plaintiff’s law would we decry entrepreneurs getting rich by doing good."
As I get older I'm thinking the only way to save the planet is through litigation (e.g., The Southern Environmental Law Center). And help the smaller players, including the fight to release Wayne Hsiung from prison (animal rights activist against factory farming).
Great article, Lee! The arbitration explosion is truly an enervating, choking scourge. It’s very useful to have your take on issues. Your writing is clear, understandable, and informative. Thank you very much for the history on how we got here and how we get out of it.
I can't read the WSJ poll. Of the "[h]alf of voters think life is worse than it was 50 years ago" did they do breakdowns on race and sex, cause I have to imagine there is some disparity there.
Article: https://www.wsj.com/us-news/american-dream-out-of-reach-poll-3b774892?st=s9hpgbjrcvaysry&reflink=desktopwebshare_permalink
Poll results: https://s.wsj.net/public/resources/documents/WSJ_NORC_Partial_Oct_2023.pdf
Excellent piece. Thanks for the research and writing. The Puck illustration is awesome! I come from a liability insurance perspective, from which I saw products liability law having a profound effect on how manufacturers make their products, judging their products on realistic liability standards, particularly those contained within the law of strict products liability, where liability is based on the design of the product, not the behavior of the manufacturer or others in the chain of distribution. Private lawyers brought those cases, usually on a contingent-fee basis, and they have expanded their presence in just about all facets of tort law. As such, in some quarters at least, bad corporate behavior is being checked by lawyers in private practice. Back when I was in the tort industry (1986 through 2017), chambers of commerce and others were crying for the repeal of laws deemed favorable to injured folks, which they continue to do, but with apparent little effect--except to disparage tort lawyers—but they keep coming up with new tactics. Plaintiffs’ lawyers--those protecting the public from harm by faceless corporations—continue to be essential to curbing corporate power, in whatever form it takes.
What areas do you see private litigation go after next?
Well done on the learned helplessness framing.
Very good article on private enforcement actions in the U.S. The remarks on European private enforcement actions is out of date. See the first chapter of Research Handbook Private Enforcement of Competition Law in the EU at https://www.elgaronline.com/edcollchap/book/9781800377523/book-part-9781800377523-7.xml