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Jewish World ReviewAugust 9, 2000 / 8 Menachem-Av, 5760

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Attacks on the rule of law

http://www.jewishworldreview.com -- POLITICIANS, lawyers, assorted rascals and do-gooders are rapidly undermining our common-law rules of torts, while the rest of us either applaud their efforts or are indifferent. Michael I. Krauss, a George Mason University professor of law, demonstrates how the attack on tort law is a serious threat to our liberties in his recently released book, "Fire and Smoke: Government, Lawsuits and the Rule of Law," published by the Oakland, Calif., Independent Institute.

A tort is defined as an act that injures someone in some way and for which the injured person may sue the wrongdoer for damages. Torts are civil wrongs, as opposed to criminal ones. Krauss says we can better understand tort law by knowing what a tort is not.

First, tort law does not exist in order to provide insurance. There are contractual markets for insurance policies to take care of that. Second, tort law doesn't exist to compensate innocent individuals. Krauss says the woman struck by lightning, the man who loses everything he owns to a more efficient competitor, the congenitally dumb or unattractive have no recourse in tort law. The essence of tort law is to reallocate risks when one person has wrongfully and without consent caused harm to another.

If a person assumes a risk voluntarily, he cannot sue his contract partner if the risk materializes. For example, if knowing you're drunk and I ride in your auto with you, I have implicitly assumed the risk of a loss and have no claim against you in the event of an injury. Krauss gives another example: If you buy a house in a one-industry town, and the factory shuts down or moves and your house loses value, you have no tort claim against the seller. Again, you assumed the risk voluntarily.

The plethora of suits against tobacco companies provides an excellent example of our dying tort law. For at least a half a century, smokers have known about the health risks associated with tobacco consumption. Just as when I chose to ride in your car knowing you were drunk and voluntarily assumed the risk, smokers voluntarily assumed health risks associated with smoking. When the risk materializes and they get sick, they have no tort claim against the seller.

What's most outrageous is the Clinton Department of Justice suit against tobacco companies. The federal government can't claim tobacco manufacturers duped them. Since 1964, there's been a federal mandate that cigarette packs contain warning labels. On top of that, for years, until 1974, the federal government passed out free cigarettes to servicemen.

About 30 cities are bringing suits against gun manufacturers for street crime in their cities. Under traditional common law, gun manufacturers are guilty of no wrongdoing. But since the anti-tobacco zealots have had a field day in extracting money from smokers, why not extort gun manufacturers? Where will all this end? Many more children are killed playing with matches than playing with guns. Should we sue match companies? If we sue tobacco companies, why not sue tobacco farmers who grow tobacco? If we sue gun manufacturers, why not sue steelmakers? Why not sue gasoline and knife manufacturers for damages resulting from fume sniffing, arson and stabbing? Should I be able to sue my broker for losses suffered during the 1987 stock-market crash?

Who's mostly to blame for this attack on the foundations of a free society? Krauss doesn't quite say, but in my opinion it's people in the legal profession, because if there's a distinct group of Americans who harbor open contempt for constitutional principles and rule of law, it's lawyers, judges and members of Congress.


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