Saving the Republic

By Thomas Brom
     
Early in his new book, See You in Court: How the Right Made America a Lawsuit Nation (The New Press, 2007), attorney Thomas Geoghegan recalls his frustration while litigating a Title VII case. His clients?a group of black forensic scientists who were being paid much less than their white counterparts?had sued, alleging racial discrimination.
      On appeal, Geoghegan grappled with the evidentiary questions he was forced to argue: "Was race 'a' factor in the pay disparity, or the 'only' factor? Does it have to be a controlling factor, or a catalytic factor? Or does it only have to be a substantial factor? And even if race was a factor, could the employer still win if he could show that he would have done the same thing based on some other, unconsidered factor?"
      Though Geoghegan, a partner in the Chicago firm of Despres Schwartz & Geoghegan, ultimately lost the appeal, he drew larger lessons from the experience. "At the end of the case, I was embarrassed?for myself, for the jury, for all of us," he writes. "It should have been a contract case. We shouldn't have had to drag race into it-in a way, because it was a race case. That's why contract is better. But because it was race, and motive, and intent, everyone felt violated. Our clients did. So did their bosses. So did I."
      See You in Court begins as an examination of the waste of time, money, and people's lives when grievances are filed in tort rather than contract. Geoghegan, after all, is a labor lawyer. In 1991 he wrote Which Side Are You On? Trying to Be for Labor When It's Flat on Its Back, an account of his early years on staff at the United Mine Workers and later as a campaigner for Ed Sadlowski, a reform candidate for president of the United Steel Workers. Even as he wrote, labor was flat on its back. "One day I will wake up and the unions will be gone, completely gone," he wrote on the first page of that book. "The other lawyers will be calling on the phone and saying, 'It's over now, really over. I'm going into workmen's comp.' "
      Less than 20 years later, workers comp is about over, too. And only around 7 percent of the private-sector workforce is organized. "Once it drops to 10, it might as well keep dropping to zero," Geoghegan predicted in Which Side Are You On? "Labor gives off now an almost animal sense of weakness."
      Much of See You in Court can be read as a lament for what's been lost. For many employees, that includes the erosion of comprehensive health insurance and the replacement of defined-benefit pensions with a 401(k) plan? if that. "I wrote the book to show the way that ordinary people encounter the legal system in a post-union world," Geoghegan says in an interview.
      But Geoghegan intends more here than reciting a prayer at labor's grave. He describes the abandonment of public trusts in America, the proliferation of mandatory arbitration clauses, the spread of disclaimers tied to everyday purchases, and the hounding of debtors by hospitals and credit card companies. He is especially troubled by the social consequences of deregulating the economy, which he sees as producing still more lawsuits and a lot less settled law.
      The result, he argues, is a populace so disaffected that it threatens the very life of the republic. Ordinary people now regard lawyers and the courts as their enemies, not the guardians of their rights. The electoral system?from its antiquated Electoral College to bloated political campaigns and restrictive voting rules?only discourages participation. Fewer people vote, or serve on juries, or even read a newspaper. Geoghegan wistfully recalls the idealism of the New Deal, expressed in footnote 4 of United States v. Carolene Products Co., dicta in a 1938 U.S. Supreme Court case that he summarizes as: "From now on, we on the Court will try to promote majority rule."
      The footnote, Geoghegan says, promised that the Court would knock down laws that restrict the political process, and protect the rights of minorities. For a while, he claims, that New Deal spirit worked. But lawyers gave up too soon on the possibilities of footnote 4, conceding ground to those who benefit from more limited democracy.
      See You in Court is more than a jeremiad. Geoghegan presents a plan that he hopes will "bring back predictability in the law." To him that means moving "when and where we can from tort back to contract, from tort back to trust, from tort back to postNew Deal kind of administrative law or regulation." He would begin locally, with maybe one or two big states adopting model laws incorporating "the unwritten common law." Eventually, Congress and the federal courts would hopefully pay attention. "The book," Geoghegan says, "is an argument for recasting the Constitution."
      Who is going to make these changes? "Lawyers, jurists, state legislators?when the right people are there," Geoghegan responds. There's not much populism left in this labor lawyer. "Starting several decades ago, the majority gave up trying, and the people who should be the majority started dropping out," Geoghegan writes. "We need judges to do what the majority would do, if the majority ruled."
      "I'm very influenced by Burkean conservatives?I'm on the side of political stability," he says. "At the Supreme Court level, lawyers will have to present the cases."
      Geoghegan's plan, however, overlooks the role that lawyers and judges have played in frustrating popular democracy. And it ignores the special fire he directs at the Federalist Society?a collection of libertarian lawyers and judges?throughout the book. "It's hard to be postmodern and have a stable Rule of Law," he writes in one withering aside.
      But without benign intervention, there's not much faith here that ordinary people can change the social order. In its place Geoghegan expresses a deep and abiding sympathy for the victims of laissez-faire, contending?in the teeth of the Ayn Rand revival?that ignoring them is bad for the soul.
      "I am opposed to deregulation because, in the end, it deregulates our moral character," he says. "The argument is quasi-religious?going back to Thomas Aquinas and Kant?and proclaims that the law has an impact on all of us. A level playing field, finally, elevates our moral character. I think we've become unmoored from that."
      In the epilogue of See You in Court, Geoghegan invokes Jefferson and Lincoln as well as FDR, insisting that law still has magical powers. "The law, the law, the law?it's still this incantatory thing," he writes. "If we think about and talk about and argue about law, then there is a little hope."
     

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