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May 2002 Archives

Regulation Through Litigation

This collection of papers is adapted from an eponymous conference held by AEI-Brookings in 2001. Although all litigation regulates in that it encourages and deters behaviors, critics of "regulation through litigation" contend that the incentives provided by modern American tort law do not effectively deter the social costs of accidents without overdeterring helpful behavior; that the system is burdened by extremely high waste and administrative costs; and that using courts to resolve all manner of social questions infringes on the delicate checks and balances among the legislative, executive, and judicial branches intended by our constitutional framers. The essays in this collection present both sides of the debate.

Smoke-Filled Rooms: A Postmortem on the Tobacco Deal

One of the nation's top tort scholars and an expert on products liability generally and tobacco litigation specifically, Viscusi gives a scathing account of the 1998 multistate tobacco settlement. Viscusi argues both that the companies themselves made a mistake in settling and that the states did their citizens a disservice, amounting to little more than placing a large excise tax on the poor. Viscusi's approachable yet thorough use of medical studies and statistics is likely to have influence on even the most ardent anti-tobacco reader.

The Case Against Lawyers

The host of "Catherine Crier Live" on Court TV offers an approachable, well-written account of lawsuit abuse in America. Crier combines her hard-hitting reporting as a journalist, her witty writing style, and her experience as a lawyer and judge to cast her view of a legal system run amok. Crier's book is easily digestible for the novice and a good introduction to excess litigation.
Philip Howard is a practicing attorney who has emerged as a national leader in legal reform, as the founder and chairman of the Common Good organization. In both this book and his earlier The Death of Common Sense: How Law is Suffocating America (Random House 1995), Howard describes how America's freedom has been diminished by its lawsuit culture. From "[Howard] tells how seesaws have started to vanish from playgrounds, how teachers are banned from touching students, and how emergency-room staff are blocked from attending to patients off hospital grounds-even if they can see them bleeding to death just 30 feet away. These aren't just speculations, a parade of hypothetical horror stories-they are actual trends and events that Howard describes and documents."
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