Monday, August 20, 2007

The Allure of Generalization

Posted by Jeff Lipshaw

I have decried, on several occasions, the non-empirical generalization of a corporate governance crisis Bertelsmanwilliamofrom the well-publicized companies who have made life more difficult for all the honest and hard-working executives and corporate boards out there.  As I've noted, there are 9,000 publicly-held companies, more or less, on all the exchanges and over-the-counter, in the United States, and I still don't know how many of them are Enron or WorldCom ilk.  There's little doubt the editorial writers at the Wall Street Journal would agree with the foregoing agnosticism about widespread corruption in the executive ranks.

But this morning the doyens of the of the left-hand column at the Journal have sunk their collective teeth into the backside of a favorite target - tort trial lawyers.  Now I have no love lost for tort trial lawyers.  And I don't know much about the underlying case - a web of scandal involving lawyers, judges, and fen-phen in Kentucky.

As far as I can tell, after several wealthy tort lawyers were charged with fraud, federal judge William Bertelsman (above) ordered them held without bail because of flight risk, saying "he wanted a speedy proceeding because 'not only these three gentlemen are on trial, the whole legal profession is on trial in this case.'"  The Journal says:

For this bit of candor, Judge Bertelsman has been assailed, with law professors publicly complaining that it was inappropriate to impugn the whole profession, or to jail the poor millionaire attorneys.  We'd say Judge Bertelsman has been the only one clear-eyed enough to realize that the foot-dragging and wink-winking that characterized the treatment of these attorneys has already left a bad taste about the way some lawyers and judges protect their own.

I guess your willingness to ascribe evil as a general matter from the acts of a few depends on where you sit.  Taking the allegations in Enron and the Kentucky fen-phen scandal as true, I am still not willing to impugn the class of business executives or trial lawyers (as much as I'd like to!) solely on the evidence of those particular cases.

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The attack on tort lawyers is a thinly disguised attack on tort law itself just as the perception of a corporate governance crisis is probably symptomatic of democratic discontent with the economic and political power of corporations (cf. Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power, 2004). I agree that hasty or rash generalizations are made in the latter case. As for the former, a must read is Thomas H. Koenig and Michael L. Rustad, In Defense of Tort Law, 2001. As you may know Jeff, Michael is the Thomas F. Lambert, Jr. Professor of Law and Co-Director of Intellectual Property Law Concentration, at Suffolk University.

Posted by: Patrick S. O'Donnell | Aug 20, 2007 6:22:00 AM

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