An Interview With Walter Olson


John Hawkins:: Why did you decide to start “Overlawyered.com?”

Walter Olson:: I launched it in July 1999, at a time when there were few if any policy weblogs. It had its origin as an overgrown bookmark file for clips I hoped to use in my future writing about the American legal system — noteworthy cases, op-ed columns, think tank studies and so on. Then it struck me: since I’m going to be collecting these pointers anyway, why not publish them? Others may find them interesting if I do. Since most news links go bad rapidly — why don’t newspapers acknowledge the value of persistent links? — it made sense to start summarizing the stories rather than just link and go.

John Hawkins:: Ralph Nader recently claimed that Americans are less litigious now than we were in the mid-1800s. Is that true and if so, why?

Walter Olson:: Nader and the trial lawyers have been making that assertion for years. I haven’t had a chance to study it in detail, but I suspect what’s going on is the continuing decline in the use of the courts for routine debt collection, possibly combined with the greater incidence of land and other neighborhood disputes at a time when property boundaries were not yet settled and most households constituted direct economic production units. I think Nader would be happy if his audience jumped to the conclusion that personal injury suits were as common in colonial times as they are today, but you notice he’s smart enough not to make that assertion directly.

John Hawkins:: Are we really the “world’s most litigious people?” How do the number of lawsuits here compare to the number in Europe or Japan for example?

Walter Olson:: The most meaningful figures for international comparisons are the ones on the size of a country’s liability insurance sector as a share of its GNP. They basically confirm the common wisdom, showing that the U.S. spends several times as much per capita as do other advanced industrial countries. Australia is usually viewed as our nearest rival in this respect, but we still were managing as of some years back to spend something like twice as much per capita as they, while farther back in the pack come countries like Canada, the U.K., Spain and Greece. The lowest rates are in countries like Denmark (and Scandinavia generally), Switzerland, and Japan. Although the figures on hand are not all that recent, the relative rankings have probably not changed much, nor would they change much if you factored in non-personal-injury areas such as commercial disputes or family law, where the U.S. is also known as highly litigious.

John Hawkins:: Why do you think the United States should adopt a “loser-pays” principle in litigation?

Walter Olson:: Practicality and morality converge here. As a practical matter, unnecessary and tactical use of coercive legal process is hugely costly and invasive both to opponents and to third parties, and the best way to discourage it is to attach a price tag to it. Virtually all other countries do so to a greater extent than we. As a moral matter, people who are wrongfully accused of offenses, or who are wrongfully resisted when they pursue just claims, deserve some form of compensation for the injury done them by tying them up in court and exposing their affairs to a nosy world. Our litigators are very hot on the idea of requiring compensation for injury done, except when it comes to the injuries they deal out themselves.

John Hawkins:: Laurence Tribe appeared “On the Record W/ Greta Van Susteren” and said that he thought animals should have legal representation that could defend their rights in court before they could be used for medical research. I thought this was one of the most insane ideas I’ve ever heard and yet Greta seemed to agree with him. What’s your opinion of what Tribe is advocating?

Walter Olson:: This is of course not a right of animals to do or refrain from doing anything; it is a right of lawyers to get themselves appointed to things. It is quite typical that when a question like this arises — should the legal profession be allowed to grab a huge new kind of power over the rest of society? — all the people invited to chat around the table about it will themselves be lawyers, and will naturally view it more favorably than if you polled a cross-section of the rest of us.

John Hawkins:: Do you think that rules for jury selection have become too favorable for the defense?

Walter Olson:: Our rules for jury selection empower lawyers to an extent undreamt of in the other countries that retain jury trials, accounting for a great deal of wastefulness, delay and tactical abuse. Sometimes this benefits the defense side, sometimes not. We should take a lesson from Britain, which has moved in recent years to cut back drastically on lawyers’ power to bring challenges to jurors, with the result that it is now usual there for a jury to be impaneled in a morning, rather than in days or weeks as happens too often here.

John Hawkins:: Give us a “quick and dirty” run down of the type of tort reform you think America needs.

Walter Olson:: Loser-pays; procedural reforms that screen out weak cases at early stages; rules against “fishing expedition” uses of mandatory discovery; controls on plaintiffs’ ability to “forum-shop” cases to whichever court looks most favorable; rollback of lawyers’ right to strike jurors; fuller due-process protection for defendants at every stage, particularly in cases where punitive damages are demanded. There’s a lot more, but that’s a start.

John Hawkins:: What is your opinion of the reparations lawsuits that are currently happening?

Walter Olson:: They are abysmal as a legal matter and rely on threats of public relations damage, not legal merit, for their settlement value. Still, there is one point worth making about them, which is this: everyone stood by while statutes of limitation were shredded and law was made up retroactively in order to nail other defendants, such as tobacco companies and some of the European companies facing World War II reparations claims. Having paid so little heed to the time-honored protections of the rule of law in those earlier cases, we now act as if we are surprised that reparations activists have drawn the obvious conclusion, which is that it’s now up for grabs in American courts whether other categories of behavior, even farther in the past but equally lawful in their day, will be redefined retroactively as legally wrongful.

John Hawkins:: A lot of people are expecting a wave of suits against fast food restaurants and junk food makers soon. What is your opinion of these suits and their chances of success?

Walter Olson:: On the one hand, these do make a logical extension of what was done to tobacco; they are not really that much more absurd. But the political balance is quite different. Smokers are a minority, but everyone buys food and will notice if the price of Slim Jims and Pop Tarts goes up in order to provide politicians, lawyers and their friends in the “public health community” with some settlement bonanza. And don’t underestimate the significance of there being thousands of food purveyors, compared with a half-dozen cigarette companies. In the tobacco case, it was possible to cut a deal calibrating payments to market share with relatively little need to squabble about which companies would pay for what. Just think of how vast the settlement table would be at which dozens of ice cream, bacon, pastry, candy, soft drink and hot dog purveyors would have to get together to argue about who was responsible for not preventing which cases of obesity, tooth decay or heart disease — the premise being, of course, that individual consumers were not responsible for preventing any of them.

John Hawkins:: Do you have an opinion on the schizophrenic way we handle illegal aliens in this country?

Walter Olson:: Up to a point, I don’t mind accepting in a legal system some degree of hypocrisy and non-enforcement; only society’s willingness not to enforce all laws to their fullest possible extent makes it possible for life to go on at all. But it strikes me as just bizarre for our law to dish out some of the affirmative rights it has done to illegals, ranging from damages for being fired from jobs it was illegal for them to hold (a principle California is now trying to resuscitate, I hear, after the Supreme Court fell one vote short of upholding it this spring) to (asked-for, but not yet ruled-on) damages to survivors of illegals who died of thirst while being smuggled across a desert because water stations weren’t provided for them, to a legal right to in-state discounts on university tuition at the expense of the taxpayers of the state of which one is not supposed to be a resident.

John Hawkins:: Would we better off without hate crime laws? Why so?

Walter Olson:: I’m not sure that it is always theoretically out of bounds to apply the idea of sentence enhancement for offenses that are going to be illegal anyway; it doesn’t trouble me that a graffiti vandal who sprays the message “Kill Ruritanians” would draw a stiffer sentence than the one who sprays “John Loves Mary”, especially if street mobs have actually been killing Ruritanians. But in present-day America, the main effect of hate crime laws is to rub salt in the irritations of identity politics. There is grave doubt as to whether such rules can be applied even-handedly, and they give activists and demagogic prosecutors an opening to turn basically ordinary crimes into identity-group incidents to keep the constituency pot boiling. In short, they act to perpetuate group suspicions rather than set them to rest, even though American society is nowadays far more successful than most through history in protecting a diversity of inhabitants from actual hate-motivated crime. And of course “hate speech” laws, where the hateful expression is made an offense in itself independent of other illegality, are a very bad idea and have properly been regarded as unconstitutional here, though they are only too popular abroad.

John Hawkins:: How much damage are the Democrats in the Senate doing by refusing to confirm so many of Bush’s judges?

Walter Olson:: Well, it does tend to undermine the argument you used to hear from some lawyer-allied legislators that justice is suffering because Congress refuses to create a bushel full of new judgeships to handle rising litigation rates.

John Hawkins:: Free Republic has been engaged in a long running struggle with the Washington Post and the LA Times over fair use. (You can read about this here: http://www.freerepublic.com/forum/a3b3290e42e6f.htm). To make a long story short, Free Republic readers post entire stories from various sources on the net and then give a link back. They say this is “fair use.” Are they right in your opinion?

Walter Olson:: No.

John Hawkins:: What do you think of the way the Florida State Supreme Court handled the election in 2000?

Walter Olson:: Its rulings did little to convince me that the court majority was acting in good faith in coming to Gore’s rescue, and the court’s dissenters seemed to feel that way too.

John Hawkins:: Weigh in on the Simpson trial? Was it handled correctly? Was justice served in your opinion?

Walter Olson:: It was an abomination, and I think most of the public saw exactly what happened: clever lawyering let a guilty man get away with murder. Incompetence by the judge and prosecution helps explain what went wrong, but Johnnie Cochran & Co.’s willingness to flout traditional conceptions of suitable courtroom behavior was unfortunately central to the defense victory.

John Hawkins:: Thanks for your time Walter.

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