"The damage done by lawfare can easily be seen in the example of Johnson and Johnson, which had sold its “Baby Powder” talcum powder since 1894, without problems until a lawfare suit forced it in 2016 to pay $72 million in damages for causing ovarian cancer – Baby Powder was certified a non-carcinogenic substance over more than a century, but the trial lawyers were able to muddy the waters by claiming that the talc deposits from which it derived might be contaminated by asbestos, a well-known “scare” substance that had been the genesis of the lawfare industry in the 1970s and 1980s.
Once this first suit had left blood in the water, lawyers were able to dredge up over 40,000 cases of people who had used Baby Powder and then suffered cancers – an unsurprising achievement, given the ubiquity of Baby Powder in the consumer market. Johnson and Johnson is currently attempting to force a division into bankruptcy, to consolidate the lawsuits and limit their payout, but a succession of lawfare-friendly judges has prevented them from doing so. As a result, a $438 billion company with 155,000 employees and the highest ethical standards over its century of existence may in the worst case be forced out of business."
Hutchinson’s proposed solution is (1) abolish the use of contingency fees by lawyers, and (2) limit the tax deduction on the “charitable” contributions from the wealthy which keep Non-Governmental Organizations funding lawfare. Resonable proposals – but I would still prefer the Maoist solution of adjusting lawyers’ attitudes by sending them off to work in the fields for a few years.
I was just thinking of this today. Who did NOT use Johnson’s Baby Powder, for years, decades, it was a staple in every baby shower gift basket.
There may be a less drastic remedy: eliminate the “American Rule”:that each party pays its own counsel fees, win or lose, unless there is a statute providing for award of counsel fees to the prevailing party. If loser pays all, plaintiffs would have some skin in the game.
Another idea worthy of consideration is bringing back the centuries-old common law offence of barratry, “a criminal offense committed by people who are overly officious in instigating or encouraging prosecution of groundless litigation, or who bring repeated or persistent acts of litigation for the purposes of profit or harassment.”
Wikipedia notes, “Although it remains a crime in some jurisdictions, barratry has frequently been abolished as being anachronistic and obsolete.” It seems to me it has never been more needed than at the present.
While we’re bringing back “anachronistic and obsolete” components of jurisprudence, how about the public pillory and free fire zone for the vegetables of justice, especially for barratry repeat offenders?
The so called “adversarial truth-finding process” of the courtroom is most likely to find a “truth” least likely supported by actual science. Emotional thinking of juries is just about the antipode of critical thinking.
The asbestos litigation trial-lawyer bonanza in the U.S. was one of the items that awakened me to just how insane the legal system in that country had become. As it was hitting its crest, the Wall Street Journal would occasionally run profiles of family-owned warehouse and shipping companies that were bankrupted after a century or more of operation simply because they stored and delivered asbestos-containing products made by other manufacturers and purchased by customers. They were destroyed just because asbestos had been stored in their warehouse and delivered by their trucks.
Some call this “strict liability”. I call it criminal insanity. And now they’re going after untold billions for baby powder because it “might be contaminated by asbestos“, which “might” cause cancer. Well, around 25% of everybody in Safetyland contracts some cancer at some time in their life, and who’s to say it wasn’t that baby powder that did it, right? Or, maybe, mother’s milk….