Un-making Law: The Conservative Campaign to Roll Back the Common Law - Hardcover

Feinman, Jay M.

9780807044261: Un-making Law: The Conservative Campaign to Roll Back the Common Law

Hardcover

ISBN 10: 0807044261 ISBN 13: 9780807044261

Publisher: Beacon Pr, 2004

How the Right is subverting the legal protections of consumers, workers, injury victims, and the environment

There is an undercover war going on in America that impacts everyone’s life far more than has been reported. The Conservative movement has been systematically turning back a century’s worth of liberal gains and protections found in the common law—the areas of law that affect most of the everyday activities of ordinary people.

Throughout the twentieth century, contract, property, and personal injury law evolved to take more account of social condition and the less powerful members of American society. Contracts were interpreted in light of common sense, property ownership was subjected to reasonable-use provisions, and consumers were protected against dangerous products.

But all that is changing. Conservatives have a clear agenda to turn back the clock on the common law to increase the rights of big business. Some significant inroads have already protected gun manufacturers from lawsuits and hampered the government’s protection of the environment, for example; more rollbacks are on the horizon.

Although this aspect of the Conservative agenda is not as visible as assaults on abortion rights and civil liberties, it may ultimately have even greater impact on our society. Jay M. Feinman’s book is an accessible, eye-opening primer, full of vivid examples and case histories. It should be an important new issue in the election debates, and in our thinking about a just American society.

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About the Author:

Jay M. Feinman is Distinguished Professor of Law at Rutgers University School of Law, Camden.

From Publishers Weekly:

Feinman, a professor of law at Rutgers, issues this indictment of what he sees as a right-wing effort to protect the wealthy and powerful by transforming the common law. The driving force of this effort, he says, is an ideology centered on property rights and freedom of contract as absolute values. In Feinman’s analysis, proponents of absolutism in property rights want to prevent the government from regulating how property is used. Regulation must be barred or made too expensive, which sacrifices the public good, such as environmental protection. Similarly, treating freedom of contract as absolute works against the interests of consumers, who find themselves bound by contracts they don’t understand and may not even learn of until the transaction is over. Likewise, according to Feinman, the right is pushing the drive for tort reform, claiming that American business is being engulfed in a Niagara of expensive liability judgments. Feinman disputes this claim and identifies the stratagems used to deny compensation to those injured by defective products or incompetent medicine. When the standard for liability is raised, when fees to successful plaintiffs’ lawyers are slashed, and when compensation to the injured is capped, Feinman argues, incentives for manufacturers to make safe products disappear. Feinman does a fine job articulating one side of a national debate of great importance.
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