Back to the law professors

With the publication of "Is Society Serious About Business Ethics?" by The Ethical Spectacle in March 2005 The Ethical Spectacle March 2005, I went back to the law professors with this email:

Dear Professor ____________,

I have received virtually no indication of willingness of tort law professors to participate in a public statement of views regarding tort reform and plaintiffs’ lawyers, whether pro or con, or in a neutral way. Two tort law professors said they would be interested in signing a letter to The Wall Street Journal such as I drafted. Several tort law professors who disagreed with me were summarily dismissive of me, and no professors who disagreed were receptive to a solicitation to work with me in the preparation and submission of an oppositional or alternative statement of position on this subject that is high on the national political agenda.

As a result, I have shifted my angle of approach on the subject to an article I have written entitled “Is U.S. Society Serious About Business Ethics?” I am circulating the article to business ethics publications and to professors of business ethics at business schools. My article has been published online at http://www.spectacle.org/0305/shatt.html by a publication called The Ethical Spectacle.

Perhaps this new angle of mine will engender more commentary by academic experts than I have been able to elicit thus far.

Thank you.

Sincerely,

Robert Shattuck

I still couldn't get traction

Two or three law professors expressed interest in signing my revised letter. The law professors with opposing views seemed not to find my more neutral "issue framing" letter any more palatable than my original draft "position" letter. None of them expressed any interest in drafting a position letter for them to sign in opposition to tort reform.

I did not receive in response to my second round of emailing the "pathetic" responses I received in my first go around, although I did take one law professor a little bit to task.

That professor emailed me back as follows:

most of us have more than enough to read and to do than to comment on
things that come in over the transom via (endless) e-mail ... [professor's name and law school]

I replied to this professor with:

Dear Professor ___________,

Thank you for the above reply.

I can only say that this is a subject that is on the national political agenda, and I do not understand the unwillingness I have encountered from the tort law professors I have communicated with to lay out any position (pro, con, or more neutral) for public consumption (such as in the form of a letter to The Wall Street Journal) on this subject about which the professors have expertise they should be willing to give the public the benefit of (particularly taking into account that some of which professors are on the public's payroll).

Sincerely,
Robert Shattuck

I go back to drawing board

The extensive negative feedback I got from the law professors caused me to revise my proposed "position" letter to a more neutral letter that only framed issues and questions for the lay public to think about in formulating their views about tort reform. Surely that would be more palatable for those with opposing views. If that did not go far enough, I thought "dueling" letters could be a nice idea, in which law professors opposing tort reform could draft a position letter for their side for submission to The Wall Street Journal.

Further, although tort reform had pronounced exposure in the 2004 Presidential election campaign, at least one law professor indicated an unwillingness to express support for tort reform because he favored Kerry and did not want to do anything that could help Bush. I did not think this should have been a significant impediment to my "position" letter idea, but I did not have a problem with revisiting with law professors once the election was over.

In January 2005 I did a second round of emailing to the law professors as follows:

Dear Professor ____________,

With the 2004 presidential election over, and with President Bush's high agenda item for tort reform, I am reviving my efforts that I initiated last fall of trying to have The Wall Street Journal publish a letter that is signed by law school tort law professors and that tries to raise the public's consciousness about the subject. I have done further work in drafting a suggestion for a letter to The Wall Street Journal, and it is appended below.

As before, I ask that, If you would have an interest in participating in this project and signing a letter, along with other tort law professors, for publication in The Wall Street Journal, please read the suggested letter to the Journal that is appended below and advise me of any suggestions or comments you have for the letter. I wish to emphasize that I am open minded in this project and would submit two different letters to The Wall Street Journal if one group of professors wanted to sign one letter and another group wanted to sign a differing letter.

If you were reticent last fall about a letter being published before election day because you felt other political issues in the presidential election were more important than tort reform and did not want your views on tort reform to affect how a voter would vote in the election, hopefully that reticence is now alleviated.

Please let me hear from you if you are interested in participating and signing, along with other tort law professors, a letter to The Wall Street Journal for publication.

Thank you.

Sincerely yours,

[my name, address and telephone number]

[suggestion for letter to The Wall Street Journal]

Dear Sir:

The undersigned are law professors who teach tort law at United States law schools.

For a quarter century, there has been growing controversy about plaintiffs' lawyers. They were an issue in the 2004 presidential election, and now President Bush is submitting to Congress again significant tort reform legislation. This presents a good opportunity to raise the public's consciousness.

We believe there are many significant questions that citizens and their lawmakers should consider and debate in a thoroughgoing fashion. We raise in particular the following:

1. In the separation of powers under the American form of constitutional government, a democratically elected legislative branch enacts laws that regulate business and other activities and that impose taxes. The executive branch, headed by a democratically elected President or other chief executive officer, implements (executes) the mandated regulation and taxation, with some delegation of authority by the legislative branch to the executive branch to write "legislative" regulations (i.e., regulations where the law is lacking in specific detail and the legislative branch has instructed the executive branch to develop details, subject to the power of the legislature to change subsequently by further legislative enactment any detail that the executive branch has specified and that the democratically elected legislature disagrees with). The judicial branch applies and interprets those laws and "legislative" regulations in particular cases where parties have a dispute. Our society needs more debate about the extent to which judges and plaintiffs' lawyers, working within the judicial domain, have usurped the legislative and regulatory functions of the other two branches of government. 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 and regulatory powers by actions within the judicial domain.

2. In the debate about plaintiffs' lawyers, characterization has been made of them as "public lawyers." We think this characterization has validity and that plaintiffs' lawyers act in a public role similar to that of governmental regulators, criminal prosecutors, state attorney generals and legislators. We further think, however, it properly leads to questions of oversight and accountability. Governmental regulators, prosecutors, state attorney generals and legislators are subject to public oversight and accountability, either to voters/taxpayers directly or to their democratically elected legislatures and executive branches of government. 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".

3. We believe the area of compensation calls for special scrutiny. . We the compensation received by governmental regulators, prosecutors, state attorney generals and legislators in their public roles, by reason of the public oversight and accountability, is reasonable for the work done, and in particular it is not geared to the dollar amount of economic activity that their public work affects (i.e., legislators and regulators don't get paid millions of dollars because they put into effect large governmental budgets, levy commensurate amounts of taxes, and write and enforce laws and regulations that affect billions of dollars of economic activity and that impose and allocate large economic costs on and among businesses, consumers and other parties.) Plaintiffs' lawyers receive huge amounts of compensation that is geared to large and sometimes gigantic dollar amounts of economic activity that their work affects and that is geared to associated costs being shifted around among various parties. An example is in the national tobacco settlements, in which the plaintiffs' lawyers got over ten billion dollars for their work that arguably usurped the legislative power of government and implemented industry wide economic and social policy for the tobacco industry, coupled with the imposition of over $200 billion dollars of payments and cost transfers from cigarette companies to state governments that are being be funded by price increases on cigarettes that are in essence taxes on the customers.


4. In evaluating the appropriateness of plaintiffs' lawyers' compensation, we think due attention needs to be paid to human nature and baneful effects that can result from overpowering inducements that can be provided by large amounts of compensation. Our country has seen enough of that phenomenon in recent years. Corporate executives standing to gain fortunes from stock options committed massive accounting frauds that contributed to maintaining and increasing lofty stock price levels that would enormously benefit them under their stock options and other compensation arrangements. Accountants have been charged with faulty accounting work arising from the conflict of having lucrative consulting work with the audit client. Stock analysts have been inappropriately influenced in their stock reports by reason of getting compensation based on investment banking business their employer gets from companies the analyst covers. Brokerage firms corrupted the IPO market by allocating stock in hidden exchanges for inflated commissions on unrelated transactions. Mutual funds and insurance brokers have acted in wrongful disregard of conflicts of interest in order to increase their revenues and profits.


5. In considering whether tort reform is or is not needed, consideration should be given to possible wrongs that plaintiffs' lawyers are perpetrating on the nation's legal system and its economy and that can be attributed to baneful effects of their very large compensation being geared to the magnitude of the dollar amount of economic activity that is brought within the purview of their cases and geared to case outcomes in which payments and other economic transfers are made among various parties, and that the more the economic activity that is affected and the more the amount of payments and transfers, the more the plaintiffs' lawyer will be compensated. Among other things, plaintiffs' lawyers have extraordinarily powerful incentives to seek: (i) expansion of harms or detriments for which a payment should be made, (ii) higher rather than lower amounts that should be paid, (iii) expansion of liability where there is no fault, (iv) disregard of distinctions between intentionally culpable, negligently culpable and faultless defendants (and other parties who bear the cost), (v) disregard of culpability of plaintiffs in their own injuries and harms, (vi) disregard of rational cost/benefit principles, (vii) the invocation of junk science if the junk science helps their case, and (viii) expansion of the usurpation by them and the courts of the powers of the legislative branch and of the executive branch regulatory apparatus.

6. 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 and regulatory function, we can only say "shame, great shame on you legislators" and "physician heal thyself."


The above are 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 suggestion for letter to The Wall Street Journal]

My correspendence with Wall Street Journal

Here is my email correspondence with The Wall Street Journal regarding my "position" letter idea:

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]

I got a lot of negative feedback

Set out below, separately enumerated, are negative feedback replies I received:

One:

Mr. Shattuck,

You might possibly find some law professors willing to sign your letter, but I am certainly not one of them. I disagree with almost everything you say.

Tort law has historically had the role of advancing society's concerns for personal safety in ways that have often outpaced the government's vision of reasonable progress and almost always displeased business interests willing to sacrifice safety and welfare in pursuit of profit. Trial lawyers serve a vital role in securing and maintaining the high quality of life we enjoy in this country today.

Please remove me from your mailing list.

Two:

NOT A CHANCE.

Three:

Please take me off your list.
I do note that you are not a law professor.

Four:

Dear Professor Shattuck:

Please do NOT list me in any way in connection with your effort.

Thank you,

Five:

You need medication.

Six:

not interested
_ B_______

Seven:

I do NOT, repeat do NOT, want to sign your letter.

Sincerely,

Eight:

Dear Mr.. Shattuck,

I believe that your criticisms badly misguided. Under no circumstances would I sign my name to your letter.

Nine:

Dear Sir: I can't join in your efforts as I disagree with your
position.

Ten:

Dear Mr. Shattuck:

I assume you got my name from some list of people that teach torts. While I do not object to unsolicited e-mails about important topics, I strongly disagree with the position that you have taken. First, I believe plaintiffs' lawyers have done a significant amount of good for this country. Second, even if I were to agree with your premises about the evil that plaintiffs lawyers do, you do not suggest any particular reforms. Which brings me to the the third point: it's apparent that you mean this letter to be an intervention in the current Presidential campaign against John Edwards. Yet you list nothing that Mr. Edwards personally has done in his professional career. For these reasons, among others, I decline your invitation.

Eleven:

I can think of no circumstances in which I would add my name to your draft letter, which I find misleading and offensive. I yearn for the day that we start talking about the enormous fees those lawyers who defend tort cases receive. It would be interesting, for example, to determine how much the tobacco companies paid their lawyers in their decades-long, scorched-earth defense of suits brought by dying or dead plaintiffs (I understand, for example, that the chief negotiator for the tobacco companies in their settlement with the states was being paid $1000.00 per hour). I do not mean to suggest that their not abuses, but they are on both sides. The notion that it is plaintiffs’ lawyers, alone, is preposterous. The answer, therefore, to your question of whether I would sign your diatribe is not just no.. It’s hell no.

Second round of emailing to law professors

Dear Professor ______,

I am writing in follow up to the email I previously sent you re: John Edwards and plaintiffs' lawyers.

I have contacted The Wall Street Journal to inquire whether it would be interested in publishing an anti-plaintiffs' lawyers letter that is signed by law school tort law professors. The Wall Street Journal has not yet responded to me about this idea. Pending hearing from the Journal, I have done a draft of an anti-plaintiffs' lawyers letter that I would like to solicit tort law professors to sign.

The text of my draft letter to The Wall Street Journal is appended below.

If you would have an interest in participating in this project and signing a letter, along with other tort law professors, for publication in The Wall Street Journal, please read the draft letter to the Journal appended below and advise me of any suggestions or comments you have for the letter.

I have tried to make the draft letter to The Wall Street Journal as a summary form statement of the case against plaintiffs' lawyers that I set out at greater length in my prior email to you (or, if not, I set it out again by appending it below after the draft letter to The Wall Street Journal below).

In considering the case against plaintiffs' lawyers, I think Walter Olson's recent book The Rule of Lawyers to be a superb book length statement of that case, and also his website http://www.overlawyered.com/ is an excellent resource.

Please let me hear from you if you are interested in participating and signing, along with other tort law professors, a letter to The Wall Street Journal for publication.

Thank you.

Sincerely yours,

Robert Shattuck

[text of draft letter to The Wall Street Journal]

Dear Sir:

For more than a quarter century, there has been growing controversy about the role of plaintiffs' lawyers in the United States. The John Edwards candidacy in the 2004 presidential election affords an unprecedented opportunity to raise the public's consciousness about this controversy. The undersigned are law professors in the United States who teach tort law and who wish to express, in a public manner, shared views they have on the subject, for whatever benefit that will provide the lay public.

We believe that problems exist regarding plaintiffs' lawyers, and that the starting place is to "follow the money."

It appears to us that the compensation that plaintiffs' lawyers receive is not subject to reasonable external constraints of either being determined in a regular competitive labor marketplace or else being accountable to voters and taxpayers. Instead, the compensation of plaintiffs' lawyers is derived as a result of decisions of judges and juries who are not spending their own money in awarding the compensation, and this, it seems to us, has resulted in significant unmindfulness about what is reasonable and appropriate compensation for plaintiffs' lawyers.

A telling example of this has been the national tobacco settlements entered into in the late 1990's. Under these settlements, there are over $100 billion in payments being made among the affected parties, consisting of the tobacco companies, their customers, and state governments. For their work in the settlements, the plaintiffs' lawyers are being paid over $10 billion, at a per hour rate of compensation that can be only guessed at, but $10,000 an hour is probably not too high, and some estimates have been as high as $90,000 per hour. The tobacco settlements effectively implement a national tobacco policy, including essentially built in cigarette taxes on customers on a going forward basis to be the main source of the payments. Compare the tobacco settlements to the work of Congress and state legislatures that adopt huge governmental budgets and enact laws and governmental programs that impose economic costs and taxes amounting to tens and hundreds of billions of dollars. Congressmen and state legislators, subject to voter/taxpayer oversight, are paid relatively modest salaries, and they not are paid huge amounts, such as a percentage of the dollars affected by their budgetary and other legislative actions. When the work that Congressmen and state legislators do, and the compensation they receive for their work, are compared to the tobacco settlement work the plaintiffs' lawyers did and their compensation from the settlements, one gets a good beginning sense that something is amiss with the compensation of plaintiffs' lawyers.

Much of the work that plaintiffs' lawyers do is similar to work of government policy makers, regulators, investigators, prosecutors and program administrators. These government employees are paid reasonable compensation that is determined under the regular operation of a competitive labor marketplace. In the case of plaintiffs' lawyers, we think it can be discerned in thousands, if not tens of thousands, of legal cases and settlements annually, that plaintiffs' lawyers are receiving very excessive compensation for the work they do. We think this is extremely excessive compensation because of an absence of a regularly operating labor marketplace and because of no accountability to taxpayers/voters, and because judges and juries, who are not spending their own money, exercise no reasonable mindfulness about the compensation that their actions award to plaintiffs' lawyers.

In a situation where compensation is excessive because it is being obtained free from any reasonable and meaningful external constraints and supervision, many deleterious consequences can and frequently flow as a result of human nature. Where there is lacking accountability for compensation, and there are not external constraints, blinding greed can take over in the minds of the recipients, and their overriding goal can become solely the huge compensation, and how to increase the huge compensation, and important societal interests will be disregarded.

It seems to us that this has happened in a number of ways in the domain of the plaintiffs' lawyers.

The plaintiffs' lawyers have sought and obtained a tremendous expansion of their domain, in order to achieve correspondingly great increase in their compensation, with little or no regard of whether society's interest is well or ill served by the expansion. As exemplified by the national tobacco settlements, the plaintiffs' lawyers have sought expansion of their domain by usurping the functions of the legislative branch and by bringing within their purview entire fields of economic, social and tax policy. This allows the plaintiffs' lawyers to apply their legal fee percentage to monetary amounts that are in the tens of billions and hundreds of billions of dollar range. Such usurpation of the functions of the legislative branch, in essence, violates democratic principles under our federal and state constitutions that provide that laws and economic, social and tax policy are supposed to be decided upon and enacted by a democratically elected legislative branch of government. The plaintiffs' lawyers seem to us willing to throw these principles by the wayside in pursuit of the goal of expanding their domain and increasing their unaccountable and unreasonable compensation.

Being unaccountable and with their eyes focused to an excessive degree on the huge legal fees they will receive, the plaintiffs' lawyers do not seem to care what the economic, social and policy decisions are that get implemented in matters they bring within their purview. Their overriding goal is to get policy decisions implemented that give rise to transfers and payments to which the plaintiffs' lawyers can attach their percentage legal fees. Many of these policy decisions would garner little or no support among other members of the society.

Being unaccountable to either a commercial marketplace or to voter/taxpayers who desire their government to be cost effective, the plaintiffs' lawyers are uninterested in cost effectiveness or the application of reasonable cost/benefit principles to the work they carry out if that application would be an impediment to a legal recovery and lessen the amount of compensation they can receive. This has resulted in thousands of ridiculous and outrageous verdicts and legal settlements virtually no one thinks has any defensibility in our legal system.

Because of the huge fees they can earn, plaintiffs' lawyers have a very strong bias in favor of finding and pinning liability on "deep pocket" parties regardless of degree of culpability. This has resulted in significant derogation of principles of justice and fairness that are appropriately sensitive to whether a person's conduct in intentionally wrongful, negligent, or without fault.

In the realm of punitive damages, with the compensation of the plaintiffs' lawyers being based on the amount of punitive damages that get imposed, plaintiffs' lawyers have a financial incentive to seek higher rather than lower punitive damages (unlike criminal prosecutors and government regulators) and this would appear to be an inappropriate incentive that results in injustice being done (when judged against the standards our society applies to prosecutors and regulators who are walled off from such a financial incentive).

With the potential of hundreds of millions of dollars of legal fees being gained for themselves, the plaintiffs' lawyers have no problem in maximizing the use of "junk science" to prevail. The silicon breast implant case is one of the better examples of this.

Most rational human beings place value on uniformity, consistency and fixed standards and guidelines of behavior, but the plaintiffs' lawyers are not interested in those things. They want to be able to affix liability regardless. If a regulatory agency, after lengthy and meticulous consideration, has prescribed that a regulated party follow a specified set of guidelines of behavior, and a defendant has followed them, plaintiffs' lawyers want to have a free reign to get judges and juries to find some additional standard of behavior to subject the defendant to after the fact. Plaintiffs' lawyers want to be able to affix liability on the basis of contradictory behaviors, i.e., liability if the defendant does X (where defendant has done X) and in another case liability for not doing X (where defendant has not done X).

In short, with so much in legal fees to be gained, plaintiffs' lawyers, like other human beings, can be and, we think, have been blinded by greed in going after their monumental legal fees, all to the detriment of societal interests of democracy, cost effectiveness, fairness, justice and rationality. We think this is happening, that the public should be told that it is happening, and that the public should demand that the situation be fixed relative to the very significant harms and risks that plaintiffs' lawyers present and are causing in the United States.

While we strongly believe that the situation regarding plaintiffs' lawyers calls for much in the way of fixing, we are not unmindful that there is a major impediment to the public's obtaining fixes as it deserves. The plaintiffs' lawyers mount a defense of themselves, the expansion of the domain that they have obtained, and their usurping of functions of the legislative branch of government on the grounds that the legislative branch is corrupted and broken and failing to properly perform its legislative functions, and that the plaintiffs' lawyers are needed to step in and provide a fix for the broken legislative branch.

We are sympathetic to the view that the legislative branch is broken and in need of a fix. It may be that our society cannot fix the plaintiffs' lawyers' problem without also providing some fix to the broken legislative branch. We think the citizens should be informed about both sets of problems and that the existence of the plaintiffs' lawyers' problem may be caused in part by the problem of a broken legislative branch. We would encourage the nation's citizens and lawmakers to augment their efforts to fix the plaintiffs' lawyers' problem and the broken legislative branch problem.

Sincerely,

__________________, Professor of Law, _________ University
__________________, Professor of Law, _________ University
__________________, Professor of Law, _________ University
__________________, Professor of Law, _________ University

[end of draft letter to The Wall Street Journal]

My stroke of genius (I thought)

I have a tendency to keep pushing forward, building on what I have done. Not being successful with the emailing I had done to law professors, the idea came to me that I would draft a "position" letter for law professors (who agreed with the letter) to sign for submission to The Wall Street Journal for publication. I had previously seen letters on important issues of the moment (legal, economic, etc.) where professors having expertise on the subject matter jointly signed a "position" letter that was published in The Wall Street Journal. It seemed that, in the 2004 election campaign, tort reform was then such an issue that was meritorious for tort or consititional law professors to express views on.

This led me to this second round of emailing to law professors.