It is now official. With the initiation of two new legal actions, one against Kraft/Nabisco and the other against an Illinois high school, May 2003 marks the reemergence of the frivolous lawsuit.
September 11 seemed to put a clamp on this phenomenon. After the selfless heroism of New York Firefighters and the passengers of Flight 93, who wanted to be seen in court claiming no one warned them that sniffing rubber cement could lead to psychosis? Alas, the frivolous lawsuit began a comeback last year when the initial legal claims against fast-food chains were filed on behalf of the “victims” of obesity. It gained steam on May 1 of this year, when a new non-profit organization called BanTransFat.com, Inc., sued Kraft/Nabisco “because it is targeting its marketing of Oreo Cookies to young children.” (Slogan: “Don’t Partially Hydrogenate Me.”) Although the lawsuit has been subsequently dropped, the precedent has been set (pun intended): On Monday of last week, Marnie Holz, one of students involved in the brutal hazing in Illinois, filed a lawsuit against her school, Glenbrook North High, because the principal recommended expelling her along with other students involved in the incident. According to her attorney, Naomi Valas, Holz is “entitled to an education,” and the school had violated her “due process rights.” The dam has burst, and we will soon be flooded with all manner of legal absurdities.
Frivolous lawsuits have consequences, some of them irritating but harmless, others quite destructive. Those in the former category include:
Insulting Our Intelligence. The premises underlying such suits require us believe that some people who appear to be alive and breathing are in fact brain-dead. The early frivolous lawsuits asked us to believe that some folks were too stupid to realize that smoking could kill you. Next we had to believe that the public was not adequately warned that guns could be dangerous. It should come as little surprise that we are now asked to believe that some people are too dense to realize that fast and junk food can make you fat. What is astonishing is that we now have to believe that students behaving badly need not fear the principal’s wrath. As if public schools didn’t have enough problems.
Silly Warning Labels. More and more manufacturers add asinine warning labels — “Do Not Place This Ladder On A Pile of Leaves”; “Do Not Tip Over the Vending Machine” — to shield themselves from legal liability. One wonders what sort of warning labels the next round of frivolous lawsuits will produce. Matchbooks will come with large type advising “Do Not Light Match After Spilling Gasoline on Hands.” “Do Not Thrust Pointed End Into Eye Socket,” will be stamped on every knife handle. Eventually, toilet paper will have to come with instructions.
The consequences in the latter category include:
Economic Damage. Lawsuits do not create any new wealth, they only redistribute it. When frivolous lawsuits succeed, they encourage even more such lawsuits. This forces defendants to spend untold billions on lawyers and settlements. When the defendants are wealth producers, money that could be reinvested and used to create new jobs is lost. Worse, in recent years the other great redistributer of income, the government, has gotten involved. In the case of the tobacco lawsuits, state governments made it easier for trial lawyers to sue in exchange for a cut of the windfall. So now government not only confiscates wealth via taxes, it also does it via the tort system. If government eventually extends this to other industries, it will only compound the wealth-destroying effect of frivolous lawsuits.
Undermining Personal Responsibility. Frivolous lawsuits send the message that an individual is no longer responsible for his behavior. Obese? Not your fault for overeating; McDonald’s is to blame. Liver sclerosis? You’re not responsible for excessive drinking; Anheuser-Busch is culpable. To the extent that personal responsibility is essential to the preservation of liberty, frivolous lawsuits undermine democracy. What is disturbing about the two recent cases is they have the effect of targeting that message toward minors. The Illinois case is arguably the worst of the two. While the Kraft/Nabisco suit tells minors that they are not responsible for their behavior that affects only themselves, the Illinois case suggests that they are not responsible for their behavior that affects others. Given that minors are the group most in need of lessons about personal responsibility, the recent cases set some potentially very damaging examples.
One way to stymie this nonsense is through tort reform. Congress is considering such legislation, and President Bush has indicated he would sign it. It can’t come soon enough. However, in the cases like the Illinois suit, where monetary damages are not involved, it will be more difficult. It will require our society to acquire a much greater sense of responsibility than it has now. Unfortunately, there are no easy answers on how to achieve that.
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