Un-Making Law: The Conservative Campaign to Roll Back the Common Law

By Jay M. Feinman

Book Overview

There is an undercover war going on in America that impacts everyone's life far more than the legal issues that typically grab the headlines. The conservative movement has been systematically turning back a century's worth of the evolving gains and protections found in the common law-the areas of law that affect the everyday activities of ordinary people.

Throughout the twentieth century, contract, property, and personal injury law evolved to take more account of social conditions and the needs of consumers, workers, and less powerful members of American society. Contracts were interpreted in light of common sense, property ownership was subjected to reasonable-use provisions to protect the environment, and consumers were protected against dangerous products.

But all that is changing. Conservatives have a clear agenda to turn back the clock on the common law to maximize the profits of big business. Some significant inroads have already been made to protect gun manufacturers from lawsuits, enforce form contracts that prevent employees from suing for discrimination, and hamper the government's protection of the environment against aggressive development, for example. More rollbacks are on the horizon.

Although this aspect of the conservative agenda is not as visible as assaults on abortion rights and civil liberties, it may ultimately have even greater impact on our society. Jay M. Feinman's book is an accessible, eye-opening primer, full of vivid examples and case histories-from victims of medical malpractice who cannot recover damages to people who relinquish their right to sue by applying for a job.

If you subscribe to any of these common myths of twenty-first-century America, you will find surprising facts and illuminating analysis in Un-Making Law:
The "All-American Blame Game" has corrupted our moral fiber-everyone is looking for a scapegoat to sue whenever anything goes wrong.
Malpractice lawsuits have gone sky-high in recent years, forcing insurance companies reluctantly to raise rates and forcing doctors out of practice.
Consumers and employees agree to arbitration because it is a much simpler, less expensive, and fairer way to resolve contract disputes.
The government invades the rights of private property owners when it protects endangered species and regulates land development.

• Format: Paperback
• Language: English
• ISBN: 080704427X
• ISBN13: 9780807044278
• Release Date: October 2005
• Publisher: Beacon Press
• Length: 240 Pages
• Weight: 0.70 lbs.
• Dimensions: 0.6" x 6.1" x 9.0"

Customer Reviews

Author is not into the spirit of liberty

This is an eye-opening book because it well shows where the opponents of tort reform are coming from. In particular, the author does not possess "the spirit of liberty" as Judge Learned Hand defined it: "the spirit which is not too sure it is right." Although the rich and powerful certainly would like to do anything they want without having to worry about liability, the system is clearly broken when: 1) municipalities have to close swimming pools and other facilities because of the threat of lawsuits 2) the MAJORITY of doctors are sued at least once 3) yes, a lady can recover damages from injuries suffered when she spilled coffee on herself - that was served at the recommended temperature - and even though it happened because she was balancing the said coffee on herself in a car 4) no company will undertake to come up with things that could help problems that pregnant women have (and Bendectin - which was never shown to cause any birth defects - was withdrawn by the manufacturer because the costs of fending off meritless lawsuits was too expensive) And so on and so on. But, as I said, this book is a good example of the kind of anti-business mentality that sees all economic activity not conducted by the government (which can't be sued) as fundamentally evil or at least morally suspect. It shows what ordinary people who simply want to solve the *obvious* problems with the tort system what they're up against.

Distortions of legal philosophy

Keeping an eye on all the fronts of the conservative attempts to destroy liberal America is not always easy, and this excellent account of the 'un-making' of law is a warning, and a reminder that changes are occurring beyond the threshold level of awareness of non-specialists. Here the issues of contract, property, and personal injury law and the rightwing effort to rewrite a century of legal writ are given a detailed look, and the result, in this very readably scholarly study, is especially insightful in the context of legal history: once again the story begins in the Gilded Age with its highly biased versions of common law, which a century of lawyers were able to critique. Now the conservatives are genuinely 'reactionary' and wish to erase all of the gains. Useful and important book for anyone who is not a legal specialist, but is concerned or confused by the current propaganda, e.g. about the issue of tort lae, about which alarmist scenarios are flushed through the media. So if you fell for the story about the lady winning a case for spilling coffee at MacDonald's (she suffered third degree burns...) this is the book to start with.

Good positive case, overbroad characterization of opposition

This is an excellent book on its positive side. I'm deducting a star because Jay Feinman paints his 'opposition' with such a broad brush. (In this respect he's a breath of fresh air next to, say, Michael Moore or Al Franken. Nevertheless that leaves considerable room for improvement.) Feinman, also the author of the excellent _Law 101_ and a very clear expositor of legal issues, sets out here to defend a century's worth of development in American common law against those who would prefer to turn the legal clock back to 1900 (or before). Among his stated targets: classical liberals, libertarians, conservatives, neoconservatives, and pretty much everybody other than 'progressives'. As a libertarian myself, I might not be expected to find this sort of thing congenial. But on a few subjects my libertarianism dresses to the left, and at any rate -- more to come on this point -- Feinman's arguments aren't quite as dependent on political ideology as he thinks they are. The meat of his case is set out in the book's middle six chapters -- two each on tort law, contract law, and property law. In each of these areas, he contends, developments of the last century or so have rendered the common law more protective of the interests of the less wealthy and powerful, and it's important to preserve those advances. I'm not an easy reader to please on this subject, and Feinman does about as well as it's possible to do: I agree with about two-thirds of what he writes, respect his arguments in most of the rest, and only once or twice feel like hurling the book against the wall. That may not sound like much, but it compares favorably with a lot of other legal commentators. On tort law, I agree with so much of what he writes that the differences aren't worth discussing. He's right; the common law of torts is working just fine (i.e., as well as law ever does), and it would be mind-bendingly stupid to 'reform' it. (This subject is pretty ideology-independent. For example, my own favored reading of the Second Amendment is somewhere to the right of the NRA's, but I still think making it impossible to sue gun manufacturers is just plain dumb.) In contract law, the heart of his claim is that twentieth-century liberalizations in interpretation and enforceability have provided protections to consumers who might otherwise (and previously did) find themselves stuck with vastly unfavorable contract terms that in many cases they might not even have read before 'agreeing' to them. Recent developments, he says, have undone those protections, to the detriment of consumers. Here, too, I agree (he's especially good on the hazards posed by arbitration clauses) but with one misgiving. Feinman likes to pick on Judge Alex Kozinski and quotes him here as a proponent of the idea that 'loose' contract interpretation by the courts could make it hard for parties to a contract to tell with precision just what they were agreeing to. Well, I don't think Judge Kozinski walks on water or any