Your interview with Bernie Marcus (“Solutions for the Litigation Crisis: An Interview with Home Depot Co-founder Bernard Marcus,” May/June 2004) points to a gaping hole in American philanthropy: the need for reform of our legal system. While philanthropists build the institutions of civil society, trial lawyers and prosecutors tear them down by perverting the law into tools of predation and destruction. Instead of protecting individual rights and encouraging personal responsibility, the legal system increasingly undermines liberty and retards progress. Marcus rightly calls this a “crisis” and a “nightmare.”
Sadly, most other philanthropists remain on the sidelines, either unaware of the crisis or unsure how to awaken from the nightmare. But there are helpful resources for philanthropists who take seriously Mr. Marcus’s plea to repair our broken legal system. Let me recommend a few based on our funding and experience in this area.
For anyone who doubts that trial lawyers are destroying our system of civil justice, Walter Olson’s The Rule of Lawyers is a useful read. How did trial lawyers extort billions from tobacco companies? Did they really bankrupt everyone ever connected to asbestos? How could they convince judges and juries that junk science justified verdicts against makers of silicon breast implants? Mr. Olson lays out the trial lawyers’ entire strategy. A Dante, he will guide you through tort inferno and show you how these predators are planning their next attacks against food, pharmaceuticals, firearms, paint, and energy. Mr. Olson also manages the websites www.pointoflaw.com and www.overlawyered.com that track the trial lawyers’ constant assault on business, freedom, progress, and limited government.
Similarly, the American Tort Reform Foundation follows the political machinations of trial lawyers as they scheme to influence legislatures and courts to expand liability. Their business model is the envy of Harvard Business School graduates, and they are furiously involved in the 2004 election cycle. To expose that part of the Trial Lawyer Industry, the ATR Foundation is analyzing trial lawyer political contributions and will soon post the results on its website. As Mr. Olson explains in his work, these political investments are paying rich dividends as courts block tort reform and allow frivolous lawsuits to move forward. Unfortunately, those dividends come at the cost of American prosperity.
Trial lawyers are not alone, however. The Federalist Society has just released a study documenting the size and scope of federal criminal liability. The conclusions stagger the imagination: more than 4000 different federal crimes and growing. Moreover, the standard for criminal liability is eroding. This report does not even consider the tens of thousands of federal regulations backed up by criminal penalties, nor does it assess state criminal laws.
Prepared by Louisiana State University law professor John Baker, this report will alarm anyone who believes that criminal law should be clear, fair, and knowable. If it is not—if it is vague, disproportionate, or unstable—how can it serve its purpose of deterring and punishing the conduct that undermines civil society; namely, violence and fraud? That, after all, is the entire point of criminal law, as opposed to tort and contract law. When criminal liability attaches to everything and citizens cannot know with confidence what actions are criminal, prosecutors are left to select who will be punished based on political expedience and raw prejudice. That is the antithesis of the rule of the law, and it undermines the criminal law’s moral foundations.
Paul Rosenzweig of the Heritage Foundation follows this problem closely and manages www.overcriminalized.com, an outstanding resource for those old fashioned enough to believe that criminal law is only for criminals. Libertarians will be shocked at the vast reach of criminal law. Conservatives will be shocked that prosecution resources are so diverted from traditional law enforcement. Liberals will be shocked that government is largely free to pick its targets and name the punishment. And all Americans will be shocked that we have become not simply a nation of laws, but a nation of laws and laws and laws.
Mr. Marcus is right: the need for legal reform is urgent. Fortunately, there are many worthwhile efforts underway. For men and women committed to freedom and prosperity—to the rights and responsibilities of a free society, to the dignity and worth of all persons—legal reform cannot be neglected. Without it, little else will remain.
I thank Mr. Marcus and urge us all to heed his counsel. Philanthropists must address this fundamental problem so that the Bernie Marcuses of tomorrow can build more Home Depots that improve society, rather than suffer more Law Depots that destroy it.
—Mr. Kelly R. Young
Claude R. Lambe