Un-Making Law: The Conservative Campaign to Roll Back the Common Law - Softcover

Feinman, Jay

9780807044278: Un-Making Law: The Conservative Campaign to Roll Back the Common Law

Softcover

ISBN 10: 080704427X ISBN 13: 9780807044278

Publisher: Beacon Press, 2005

There is an undercover war going on in America that impacts everyone's life far more than the legal issues that typically grab the headlines. The conservative movement has been systematically turning back a century's worth of the evolving gains and protections found in the common law-the areas of law that affect the everyday activities of ordinary people.

Throughout the twentieth century, contract, property, and personal injury law evolved to take more account of social conditions and the needs of consumers, workers, and less powerful members of American society. Contracts were interpreted in light of common sense, property ownership was subjected to reasonable-use provisions to protect the environment, 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 maximize the profits of big business. Some significant inroads have already been made to protect gun manufacturers from lawsuits, enforce form contracts that prevent employees from suing for discrimination, and hamper the government's protection of the environment against aggressive development, 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-from victims of medical malpractice who cannot recover damages to people who relinquish their right to sue by applying for a job.

If you subscribe to any of these common myths of twenty-first-century America, you will find surprising facts and illuminating analysis in Un-Making Law:
The "All-American Blame Game" has corrupted our moral fiber-everyone is looking for a scapegoat to sue whenever anything goes wrong.
Malpractice lawsuits have gone sky-high in recent years, forcing insurance companies reluctantly to raise rates and forcing doctors out of practice.
Consumers and employees agree to arbitration because it is a much simpler, less expensive, and fairer way to resolve contract disputes.
The government invades the rights of private property owners when it protects endangered species and regulates land development.

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About the Author:

Jay M. Feinman, an authority on contract law, tort law, and legal education, is Distinguished Professor of Law at Rutgers University School of Law, Camden. He is the author of Law 101: Everything You Need to Know About the American Legal System.

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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