Me to WSJ, 9/5/04
To Whom It May Concern at The Wall Street Journal:
I have initiated efforts to try to obtain a letter jointly signed by law school tort law professors for publication in a national newspaper (preferably The Wall Street Journal) that sets out an anti-plaintiffs' lawyers position of the law professors. I am doing this at this time because the John Edwards candidacy is an unprecedented opportunity to raise the public's consciousness about the damage I believe plaintiffs' lawyers are doing to the country and the risks they pose.
If I can obtain such a letter, would The Wall Street Journal be interested in publishing it? If The Wall Street Journal would be interested, I would need to find out what procedures I should follow, such as whether The Wall Street Journal would require to be provided with an originally signed letter or whether something else should be done to evidence "signing" by a professor, whether it would be helpful for The Wall Street Journal to see a draft of the letter in advance, and whether The Wall Street Journal would suggest a particular time frame for publication.
I very much look forward to hearing from you in response to this proposal.
Thank you.
Sincerely yours,
Me to WSJ, 9/9/04
Dear Sir or Madam,
I am following up on the proposal I made in the attached email I sent to you over the weekend. I am wondering whether you have had an opportunity to consider the idea.
I have initiated contact with well over 150 tort law professors by sending them emails in the form appended at the end of this email that sets out, in lengthy form, my own statement of the case against plaintiffs' lawyers. I have drafted a proposed anti-plaintiffs' letter to the editor for the tort law professors to consider signing that is 1600 words long. At the moment, I am holding off circulating the draft letter to the law professors pending an indication that The Wall Street Journal would be interested in publishing such a letter signed by professors willing to sign it.
It would be very helpful if I could hear from you whether The Wall Street Journal is interested in this idea.
I look forward to hearing from you.
Thank you.
Me to WSJ, 9/24/04
Dear Sir or Madam,
I am following up on the proposal I made in two emails I sent to you on September 5 and September 9. I have not heard anything in response to those emails. I have continued to do work on this project and want to report the same to you. Further, I would like to receive some express indication whether or not you will be interested in publishing a letter or letters signed by tort law professors that result from my work or whether I should look for another national newspaper or other publication to propose this idea to.
.
I have contacted more than 200 tort law professors. My most recent form of email to them is appended at the end of this email, which includes a draft of the anti-plaintiffs' lawyers' letter to be addressed to The Wall Street Journal (1600 words long). Based on the reactions I am getting, some professors may prefer to sign a more neutral letter that lays out some points and considerations on both sides of the debate. Other professors may want to sign a pro-plaintiffs' lawyers' letter.
Again, I very much desire to hear from you whether The Wall Street Journal will be interested in publishing one or more letters signed by tort law professors that come from my work or whether I need to look for another national publication to consider this idea.
For what it is worth, I have been in touch with Walter Olson (whom the Journal has published a number of times) about what I am doing. You might want to contact Mr. Olson for his views about my project.
I look forward to hearing from you.
Thank you.
and
Dear Ms. _________,
I am sending this email to you because you have considered my submissions in the past and have replied to me.
This time the submission is not a letter or op/ed piece by me but an anti-plaintiffs' lawyers' letter signed by tort law professors.
As the attached email indicates, I have been trying to get the attention of The Wall Street Journal letters editor and/or the editorial features editor, but have not been successful to date. If there is anything you could do to help me get their attention, I would very much appreciate it.
Thank you.
Sincerely,
Ms. K to me, 9/24/04
i'm sorry the features eds haven't gotten back to you yet. i very much doubt we'd want to publish something along these lines as an op-ed. it's a good subject, one that's dear to our hearts as you knhow. but experience teaches that when more than one or two authors gets involved, the article simply isn't as pointed and on the news as we like. i will tell the features editors what i've replied. If they have a different view, they will be in touch.
as for letters to the editor--if you can 1) shorten it to 150 words and 2) refer to an article the Journal has published, that editor might be interested. but i should warn you that he receives about 1,000 letters a week for about 25 slots.
sorry i can't be more encouraging.
Me back to Ms. K, 9/24/07
Dear Ms. K_________,
Thank you very much for the quick reply and forwarding the same to the other editors.
I think I remember jointly signed letters from history and/or constitutional law professors (perhaps on both sides) that the Journal published in connection with the Clinton impeachment matter and also I think I remember from further back a jointly signed letter from economics professors on some economics issue.
I am going to continue to work on the idea. I am not a tort law professor and would not be signing the letter. I will need to see what length of letter the tort law professors want to sign.
I will try to keep the letters editor and the editorial features editor apprised of my progress.
Again, thanks for your help.
Sincerely,
WSJ to me, 9/27/04
Dear Mr. Robert D. Shattuck, Jr.,
Tunku Varadarajan, op-ed editor, requested that I let you know we will not be able to use your submission to the editorial page. He sends his regards and thanks you for offering it to us.
Sincerely,
Marie Coyle
Editorial Features
The Wall Street Journal
Me back to WSJ, 9/27/04
Dear Ms. Coyle,
Thank you very much for the above reply. I would like to say that I have submitted only an idea for a letter to be signed by tort law professors (which would not include me because I am not a tort law professor) and not any specific letter itself. If I am able to procure such a letter signed by tort law professors, I trust Mr. Varadarajan will not object if I re-submit at that time when there is a specific letter (and not just an idea) for consideration.
Again thank you.
Sincerely,
WSJ back to me, 9/27/04
Dear Mr. Shattuck,
Please feel free to re-submit the actual letter at a future date. The editor will reconsider your proposal at that time. Thank you.
Sincerely,
Marie Coyle
Editorial Page
The Wall Street Journal
And me back again
Dear Ms. Coyle,
Thank you and I will do so.
Sincerely,
And again me to WSJ, 9/27/04
Dear Ms. Coyle,
I am continuing my work on this project and want to make you a report.
I have contacted over two hundred professors who teach tort law. Some of the reactions I am getting have prompted me to prepare and circulate a draft of a more neutral letter. I am appending the text of the more neutral draft letter below.
I believe it would be good for The Wall Street Journal to publish the neutral letter if that is all I can get professors to sign. I think part of the problem is a failure in the legal profession to even address the significant issues and questions. I think part of the reason for that is that the profession is hard put to come up with decent answers. In that kind of situation, just getting the questions out in front of the public (such as by the below letter signed by tort law professors) is a helpful step.
In any event, I do not have anything specific to submit to The Wall Street Journal yet. If and when I come up with something specific, I will re-submit at that time.
Thank you for your consideration.
Sincerely,
Robert Shattuck
[draft of "neutral" letter to The Wall Street Journal]
Dear Sir:
For a quarter century, there has been growing controversy about plaintiffs' lawyers in the United States. They are an issue in the 2004 presidential election, which affords an opportunity to raise the public's consciousness about them. The undersigned are law professors at United States law schools who teach the subject of tort law.
We believe there are many significant questions related to plaintiffs' lawyers that lawmakers, judges, bar associations, newspapers and citizens ought to raise and debate in a more thoroughgoing fashion than has been done previously.
Here are some issues we consider the most important:
1. In the American form of constitutional government, a democratically elected legislative branch of government enacts laws that regulate business and other activities and that impose taxes. The judicial branch applies and interprets those laws in particular cases where parties have a dispute. Our society needs more debate about the extent to which judges and plaintiffs' lawyers, and others such as state attorney generals, working within the judicial domain, have usurped the legislative function. We cite the national tobacco settlements entered into in the late 1990's as one very large case in point, and we believe there are untold numbers of other examples that warrant evaluation of whether there has been an inappropriate usurpation of the legislative function by actions within the judicial domain. (By inappropriate, we include a legislature being derelict in exercising its legislative powers and failing to stake out, as within its domain of legislative prerogative, matters that judges and plaintiffs' lawyers are carrying out through the judicial domain.)
2. In the debate about plaintiffs' lawyers, characterization has been made of them as serving a public role and they are "public lawyers." We think this characterization has a degree of validity. We further think, however, it properly leads to questions of oversight and accountability. In particular, debate should be had about whether democratically elected legislatures ought to exercise more oversight over the activities and compensation of plaintiffs' lawyers in their role as "public lawyers", similar to the way legislatures have oversight over regulatory agency activities and the compensation of government regulators and prosecutors.
3. To the extent plaintiffs' lawyers act in a public role as "public lawyers", we discern a number of areas where democratically elected legislatures might think legislative oversight and supervision are needed. Court judgments, legal settlements and plaintiffs' attorneys fees are not "free" manna from heaven and all payments of them must come out of someone's pocket. For example, in lawsuits against corporations, the ultimate source of payment may be customers (through higher prices for goods and services charged by the corporation), employees (through lower wages), or the shareholders in the form of reduced profits accruing to them. Further, the more "public" a legal case is, and the more "public" the plaintiffs' lawyer's role is, the greater there is a collateral cost impact on parties other than the particular defendant. This happens because, if one corporation is held liable for doing something or not doing something, other corporations may be forced to expend extra funds to avoid themselves being subject to a similar liability. Another way that costs get spread beyond the immediate defendant is increased insurance premiums that are payable by all. In regulating business activities in a broadly applicable way, government regulators apply cost/benefit principles and endeavor to have cost-effective rules. More debate is needed how well cost/benefit principles are applied in the judicial domain in cases where costs are being spread around or imposed in broad "public" ways and whether legislatures should take oversight action about the same.
4. In the more "public" cases, where so many different parties are being financially affected, those parties have greatly varying degrees of culpability, including "no culpability" (by which we mean where an activity has a known risk and some losses are certain to occur, and also where parties have no knowledge of a risk and there is no negligence). To the extent there are situations of "no culpability", there is significant room for democratically elected legislatures to determine allocation of loss. For example, car manufacturers manufacture cars that will annually result in tens of thousands of deaths, many times more injuries and tens of billions of dollars of property damage (a "no culpability" situation). It is properly within the legislative domain for legislatures to decide among possible ways of allocating losses where there is "no culpability" of parties. For example, the legislature could decide that automobile manufacturers should pay for all losses or the legislature can decide in favor of the system our society has in effect of mainly requiring car owners to purchase insurance to cover losses. We think more debate is needed about loss allocations in "public" cases involving "no culpability" of parties, whether the loss allocations that manifest themselves in the judicial domain are deemed acceptable by the legislature, and whether the legislature should take action to change loss allocations that are being imposed in the judicial domain. We believe these observations and the need for debate can be extended to cases involving disparate degrees of culpability of parties and principles of comparative culpability.
5. .Our society does not pay government prosecutors and regulators based on the amount of jail time or the amount of fines they are able to get imposed as punishment on defendants. More debate is needed about whether plaintiffs' lawyers should be allowed to receive compensation based on the amount of punitive damages they are able to get imposed on defendants.
6. Fines that government regulators get imposed as punishment can go into the government coffers and be available for funding ongoing regulatory activities or other governmental purposes. More debate is needed about whether private plaintiffs should be allowed the windfall of receiving punitive damages (in addition to the compensatory damages compensating for their loss), as opposed to directing the punitive damages to the government for governmental purposes?
7. It needs to be debated more the extent to which part of the problem is that the legislative branch of government, and its regulatory apparatus, are corrupt and defective and not functioning properly, because of undue control by "special interest" money or because of the regulatory agency/industry "revolving door" syndrome. If a corrupt and defective legislative branch and regulatory apparatus is concluded to be a contributing cause to the courts and plaintiffs' lawyers acting in the judicial domain to usurp the legislative function, we can only say "shame, great shame on you legislators" and "physician heal thyself."
The above are only some of the significant questions implicated in the controversy over plaintiffs' lawyers. We do not think the public and lawmakers have had these questions properly and sufficiently raised before them and the public, political and legislative debate about them has been deficient. We think the public and the lawmakers are ill served by categorizations of the debate as "business against the little guy" or "patients against rich doctors." We consider it unfortunate that the most vocal protagonists, to wit, the plaintiffs' lawyers on one side, and business and doctors on the other side, have a predominant financial interest only on one side, whereas the reality for the citizenry is that they have more equal financial interests on both sides. Citizens may themselves be plaintiffs seeking fair and appropriate legal recovery on the one side; on the other side they ultimately, in small amounts, and hundreds and thousands of times over, and in a fashion similar to being taxed, are the source of payment of court judgments, legal settlements and plaintiffs' attorneys fees. We believe that the controversy over plaintiffs' lawyers needs to be approached from the perspective of the public that has financial interests on both sides of the debate, and the proper resolution of the debate should seek to balance those interests.
Sincerely,
__________________, Professor of Law, _________ University
__________________, Professor of Law, _________ University
__________________, Professor of Law, _________ University
__________________, Professor of Law, _________ University
[end of draft of "neutral" letter to The Wall Street Journal]
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