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!
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.
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.
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.
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