Fiction to Fact

Last week, the Ninth Circuit Court of Appeals hastened America’s descent from the rule of law into the rule of lawyers. In Ileto vs. Glock, the increasingly infamous court ruled 2-1 that the gun manufacturer could be held liable for selling a firearm in Washington state that wound up being used in Buford Furrow’s 1999 shooting spree in California. Judges Richard A. Paez and Sidney R. Thomas, who cast the two deciding votes, were also on the three-judge panel that voted last September to stop the California recall election.

It’s an ironic decision, given that it has come along while the movie adaptation of John Grisham’s The Runaway Jury is still running in theaters. Although Grisham’s 1996 book involved a suit against a tobacco company, the screen version was changed to a trial over gun violence — presumably because the successes of Dickie Scruggs, Ron Motley, and the other tort kings who extracted billions from the tobacco companies made Grisham’s original plot seem somewhat less than novel.

Runaway Jury is part of a familiar pattern: From A Civil Action to Erin Brockovich to The Practice, the media consistently depict noble plaintiffs’ attorneys running bootstrap operations against nefarious corporate execs. In this latest variant, sinister Gene Hackman is the unscrupulous defense-side jury consultant pitted against Dustin Hoffman’s ambitious-but-incorruptible plaintiffs’ lawyer. Hoffman is trying to blame and punish gun companies for his client’s random murder — a legally tenuous theory that the jury unflinchingly adopts when freed from the companies’ blackmail and bribes.

But as with the tobacco cases, fact has quickly outrun fiction. Although Glock involves no jury trial, and obviously no jury tampering, holding the gun company responsible is still a travesty of justice. The killer, Furrow, had attacked staff members at a mental institution where he had arrived drunk, threatening suicide and mass murder. While pleading guilty to that assault, he reiterated mass-murder fantasies. Nevertheless, the judge failed to commit Furrow, instead letting him walk with a light eight-month sentence — barely more than time served — only months before he made good on his threats.

Yet Furrow himself is not a defendant in Lilian Ileto’s suit, and neither are the treatment facilities and state entities that let him fall through the cracks. Instead, the plaintiffs predictably went after the company that manufactured the gun that ultimately wound up in Furrow’s murderous hand, and the court’s majority buys into that loopy theory of guilt through judicial activism of the worst sort. The majority not only ignores relevant California case law on negligence and nuisance, but also sidesteps a controlling California statute that exempts manufacturers in products liability claims for “[i]njuries or damages resulting from the discharge of a firearm or ammunition.”

Government through legal fiat — what my colleague Walter Olson calls “the rule of lawyers” in his eponymous book released earlier this year — conveniently circumvents those pesky checks and balances, which foster stability by making radical changes difficult to achieve. Constitutional mandates are nearly impossible to reverse, and massive class-action settlements achieve policy goals without requiring approval from the public and its elected representatives.

It also should be emphasized that the Hollywood image of noble plaintiffs’ lawyers protecting the public from evil big business is nothing but a self-perpetuated myth. As documented in “Trial Lawyers, Inc.” — a recent study by the Manhattan Institute — the plaintiffs’ bar is in itself the biggest of big businesses. Trial Lawyers, Inc., were it a corporation, would have annual revenues of $40 billion — that’s 50 percent more than the revenues of Microsoft or Intel, and twice those of Coca-Cola. But unlike these businesses, which sell desired products to willing consumers, Trial Lawyers, Inc. fills its coffers by exploiting the government’s monopoly on “justice,” shifting dollars coercively from one set of pockets to another while taking a huge cut for itself in the process.

This frightening reality has been hidden from the American people, thanks to inaccurate Hollywood portrayals and the massive public-relations efforts the lawsuit industry makes on its own behalf, through political contributions (over $500 million since 1990) and so-called “consumer groups” that manipulate public opinion. But even as Ralph Nader calls the Big Mac a “weapon of mass destruction,” Americans do retain the power to reassert their authority at the polls. The trial bar’s obstruction of commonsense reforms like the Class Action Fairness Act, and judicial nominees offensive only for their fidelity to the law, may ultimately backfire.

Seven years after The Runaway Jury, John Grisham published this past winter The King of Torts, which exposes mass-tort lawyers as the corrupt swindlers they really are. Let’s hope that the American people prefer its legal analysis to Runaway Jury’s. Because while the victims of Buford Furrow’s killing spree can never be brought back, our outrage over that tragedy shouldn’t blind us to the legal tragedy wrought by the outrageous Ninth Circuit — and their cohort of greedy trial lawyers.

This piece originally appeared in National Review Online

This piece originally appeared in National Review Online