Some of my reactions upon reading this book in 1991.

This book didn’t change my opinion of lawyers but, as with most books exposing matters the reader already disapproves of, I was still a little aghast at the extent of the rot they’ve inflicted on American society and law and interested to know the details of their sleaze and how things got this way.

Olson puts most of the blame on the Legal Realists, a group of legal scholars in the early part of the 20th century, who got several legal reforms passed that would encourage (and they knew this would happen) litigation. Their theory, which Olson calls the invisible theory, hoped that all sorts of “malfeasance” would be litigated, that dirty secrets would be aired, every dispute fought in the court of law, and generally a deterrence towards misdeeds would be set up by increased litigation. The theory also predicted that the “powerful”, like monopolies -- many of the first reforms arose out of anti-trust laws and corporate tax cases -- and landlords and employers would be kept in check by populist litigation.

This bit of social engineering via litigation failed and culminated in making every civil plaintiff’s lawyer a “private attorney general” with his opponent having few of the criminal defendant’s rights against vague charges and self-incrimination and double jeopardy and ex-post-facto laws (eventually vague charges culminated in RICO laws). Contract law reform resulted in “the death of contract” and uncertainty in how almost any contract would be interpretated. Contracts formally represented a set of laws that two parties could voluntarily submit to -- without dragging the rest of society into it. Changes in jurisdictional law Spurred by tax cases involving nexus, laws regarding jurisdiciton changed. Changes in which law a plaintiff could be tried under set up a competition among states to have the laxest laws favoring plaintiffs. Changes in rules of discovery fostered the onerous search for evidence and made it a tool for future lawsuits and stealing trade secrets as well as a tool for extortion via litigation. Lawyers were allowed to advertise. Last (but by no means least -- Olson rightly feels this is the cornerstone of the current trouble) contigency fees became common.

These changes to the law don't include changes to practice: bogus “expert” witnesses, evidence forging, lawyers proudly shaking down opponents all the while proclaiming the virtuousness and social benefits of their actions (while bitching about the burden of malpractice suits against them), and the evading of specific pleadings and rules of thumb.

The law lost all objectivity with vague laws which made possible many charges against people who honestly tried to comply and allowed vague charges. Punitive damages, formerly assessed only against those who had maliciously set out to hurt someone and not against those who had done harm through mere neglect, incompetence, or accident, became common. “Pain and suffering” damages, formerly given only to those who had been physically hurt, started to be awarded. The definition of “lost income” expanded. It was formerly given only to those who were well established in a profession and could have really expected to make a given income -- not opera students who stumble and lose their perfect pitch and may have made it as professional singers (an actual case).

One of the best things about this book is that Olson points that the Legal Realists did have some valid complaints about the hard, objective procedures and rules of the courts before them. Sometimes the results weren’t justice. Olson argues that this could have been helped through minor changes. The Legal Realists argued that subjective factors entered in in actual fact so why not make the whole system more formally lax and subjective? But, like most other programs to make the world a better place and make us all better behaved, this one led to judicial and legal monstrosities of legalized extortion and the wasting of thousands of hours and billions of dollars that could have been put to better use (a point that Olson doesn’t particularly emphasize). Litigation increased but justice didn’t. Legalized extortion became the norm, and “little people” weren’t protected from the big guys when the new laws were unfurled. The big guys could beat up each other too.

Olson proposes laws and, the linchpin of his reforms, is the European system of the loser paying the court costs. This encourages parties who truly think they’re right -- at least under clear laws -- to hold out for a verdict rather than cave-in early before trail to save on court costs they won’t be compensated for. Olson also points out a crucial philosophical point that used to be understood in pre-Legal Realist days: that lawsuits are evil, an intrusion on lives, a besmircher of reputations, a waste of time and money, and a last resort. Olson points out that, realistically, society can not stand every injustice litigated, every right defended in court. To believe otherwise leads, like many utopian impulses, to tyranny.

Olson is, I think, too soft on the juries (and, to a certain extent, judges) that hand our ridiculous awards. To be sure, they are confused by expert witnesses and crucial information is withheld, but some juries are notably stupid with a bad streak of populist get-the-guy-with-money ideas. (In Europe, counsels are not allowed to hire expert witnesses -- the judge picks them from a pool. There has to be a reason Bronx and Cook County, Illinois juries are loved by plaintiffs while rural Illinois or Staten Island juries are regarded as stingy. Olson portrays judges, with notable exceptions, as fair but overburdened with little time to investigate suspected malfeasance. Even though this is one of those social policy books, it also is a nice history of some key trends in American civil law. Olson suggests reforms -- the main one being eliminating contingency fees -- and tells why some proposed ones won’t work.

On the stylistic level, most of those chapters read like magazine articles. (I read the chapter on discovery in Reason, that’s how I heard of the book). Olson is a good writer, clear and often humourous and sarcastic without poisoning his arguments with hyperbole or venom. However, I think some of his literary allusions served no point. ( )