Conservatives have long argued that Democratic trial lawyers are to blame for out-of-control litigation. In his new book, See You in Court: How the Right Made America a Lawsuit Nation, Chicago lawyer Thomas Geoghegan volleys back that, on the contrary, it’s Republican deregulation that has led to the spike in lawsuits. For instance, in the past much employment was covered by union contracts. If you were fired and felt wronged, you could go to a neutral professional arbitrator who’d decide—cheaply, quickly, and with relatively little fuss—if the termination was fair. Now, however, a wronged employee has no recourse but to sue under tort law —which means he or she has to prove that the employer is systematically racist, sexist, or evil in some other categorical way. The resulting court cases are expensive and endless and leave just about everybody (except the lawyers) furious.
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Geoghegan—author of the memoir Which Side Are You On? Trying to Be for Labor When It’s Flat on Its Back—is a sharp thinker, and his aw-shucks humility, low cunning, and knack for inspirational jeremiads make one suspect he is a very good lawyer. But in that lawyerly tradition, he often seems more interested in scoring points than in fairness. His knee-jerk dismissal of the opposition can be grating: at one point he casually refers to the red-blue divide as “North versus South, or Slave versus Free.”
But even if Geoghegan’s efforts to link the courts and the political culture aren’t entirely successful, they do give him an excuse to devote the second half of his book to a nuts-and-bolts analysis of the American political system and its failings. Geoghegan’s central point here is that American government is, among modern democracies, uniquely unrepresentational. Unlike many nations in Europe and Asia, the U.S. operates under a 225-year-old-plus constitution, which, Geoghegan notes, “smiles and keeps its secrets about matters that a modern constitution in any other country would decide.” At the time of the Revolutionary War, the U.S. was, well, revolutionary in its willingness to extend the vote and to build its government upon the consent of the people. Now, however, and in comparison to the rest of the world—or even to state constitutions—the federal government is not especially democratic. Political gerrymandering means that only a fraction of the seats in the House of Representatives are competitive in any given year. The Senate, which apportions seats by state rather than by population, is naturally antimajoritarian—and a supermajority of 60 votes is effectively needed to pass legislation. The president is chosen by the electoral college, another system that gives disproportional representation to less populated areas of the country. Because of these imbalances, a relatively small minority of Americans can stymie initiatives favored by a vast majority, which is why, for instance, Congress hasn’t been able to change American policy in Iraq despite a national consensus that we should do so.
