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‘Litigation Nation’ Review: Actionable Behavior

America’s litigiousness is a form of civil combat that refines the law through the forces of social change and legal doctrine.

PHOTO: GETTY IMAGES

By

Gerald J. Russello

Dec. 25, 2019 1:40 pm ET

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America is awash in litigation. Considering noncriminal cases alone, private parties across the country file millions of lawsuits every year. Some decry this phenomenon, arguing that it represents social decay in a country where conflict cannot be resolved without recourse to robed philosopher kings. Others see in the easy availability of legal redress the American sense of equality. Lawyers (at least according to Alexis de Tocqueville, who devoted some pages in “Democracy in America” to their role) form a new kind of democratic aristocracy, trained in the idea that justice is not at the whim of an elite but available to all through public precedent and judicial decisions.

In “Litigation Nation,” Peter Charles Hoffer, a professor of history at the University of Georgia, tries to get to the bottom of the American way of litigation. He devotes chapters to topics such as divorce, civil rights, free labor, product liability, and swindles and swindlers. He takes up some famous cases to show how the law has served and reflected social change as well as legal doctrine. Law is a communal enterprise, Mr. Hoffer tells us, and the individual parties to a lawsuit are participating, sometimes unconsciously, in a larger frame. “Litigation is more than a ritualized form of civil combat; it is also a measure of our commitment to a rule of law,” one that embodies the contradictions of American society since before the founding: “freedom and slavery, individualism and the need to belong to organizations, optimism and insecurity.”

Americans have long loved to fight in court. As Mr. Hoffer shows, 17th-century New Englanders sued one another often, and with apparent relish, to protect their honor and to assert or preserve their social status. The author looks, in particular, at defamation suits. In the face-to-face societies of rural New England especially, one’s status and reputation were everything and needed defending in court. At the same time, Old World hierarchies had begun to dissolve, and the courtroom was where the emerging egalitarian ethos was being hammered out. The “ideal of an ordered society of rank and status soon began to fray in the colonies,” Mr. Hoffer writes. “Servants who did not know their place challenged their masters in court. Masters and mistresses libeled one another’s families.” 

PHOTO: WSJ

LITIGATION NATION

By Peter Charles Hoffer
Rowman & Littlefield, 224 pages, $35

Although the court cases that Mr. Hoffer recounts involving intimate and business shenanigans among the Puritans are great fun, he has a more important point to make. Once society was rooted less in such small communities, defamation seemed a concern only for the famous or infamous. Today, harmful words are again a source of litigation. A negative comment on a website or social-media post can reopen the possibilities for defamation. In some ways, online communities are a return to the colonial or preindustrial societies of our past. A similar observation can be made about large product-liability cases. The evolution from only being able to sue a direct seller for fault to large-scale cases against distant manufacturers is a result of the massive economic and productivity growth of 19th-century America, giving rise, for instance, to the legal innovation of class actions.

The law reflects societal norms. Sometimes these norms are unjust, and the law has in the past played a role in enforcing pernicious hierarchies, but it has also helped to break them. As Mr. Hoffer shows, slavery was once embedded in American law and considered a matter of property law. Indeed, slavery could not have existed without legal protection and enforcement. The contradiction, of course, is that people are not property. 

Mr. Hoffer recounts some of the agonizing arguments that sought to reconcile that contradiction. Atwood’s Heirs v. Beck (1852) considered the absolute authority of an owner to free slaves, weighed against the fear that doing so would recognize legally what everyone knew morally—that slaves were free human beings. The Alabama Supreme Court, despite gritting its teeth and uttering a horrific legal defense of slavery—arguing that the law governing slavery, “pervaded as it is by the spirit of christianity, and founded on principles of humanity and benevolence,” was in fact the slaves’ protector—nevertheless confirmed the slaves’ freedom. 

Other cases weren’t so charitable. In Fitzgerald v. Allman (1880), a post-Civil War case not discussed in the book, a landowner gave his former slaves some land in explicit reparation for slavery. The landowner’s heirs sued, and the court sided with them; the landowner’s religious fervor, it was argued, had made him give away his land to the slaves. Such personal acts of justice came too soon for the nation.

Mr. Hoffer traces the law surrounding slavery up to a 2006 decision by the Seventh Circuit Court of Appeals. Judge Richard Posner rejected a class action by descendants of slaves brought against companies whose predecessors had arguably profited from the slave trade. Too much time had passed, Judge Posner reasoned; moreover, “it would be impossible by the methods of litigation to connect the defendants’ alleged misconduct with the financial and emotional harm that the plaintiffs claim to have suffered as a result of that conduct.” Conventional legal doctrines here trumped the strong historical and political claims of the plaintiffs. More recently, the legal concept of restitution has moved outside the courtroom to inspire private actors such as universities to undertake reparation efforts of their own.

People typically commence lawsuits for money, but more is usually at stake. Plaintiffs feel aggrieved, defendants affronted; the nature of that grievance or affront is conditioned by changing mores and expectations, and in confrontation with established legal doctrines, which themselves evolve over time. The feedback loop between law and culture is why courtrooms are so closely watched across the ideological spectrum. Mr. Hoffer seems to accept a generally liberal perspective on the goodness of social change effected in the courtroom. But based on his premises, there is nothing about the law that would prevent it from moving in a more conservative direction. As Mr. Hoffer’s case studies show, however, resolving disputes through public trials that result in reasoned decisions is better for a democratic society than the likely violent or coercive alternatives.

Mr. Russello is a lawyer in New York and the editor of the University Bookman.