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Commentary & Opinion
Tue May 22, 2012
Stephen Gottlieb: Outdated legal doctrines
The law of contract, based on the consent of the parties, and the law of torts, based on our obligations when no agreement covers what happened, are fundamental to American law. There is only one problem. Both fields are hopelessly out of date.
We live in a “sign here” world. We‘re chastised for holding everyone up if we try even to read the contracts in front of us. For my first home mortgage, the bank attempted to make me sign without reading documents with all sorts of unconscionable language. Sometimes we can’t read the contract until after we’ve bought something because the contract is under the shrink wrap. Or we are presented with contracts too long to bother with for small online purchases. We call that “click wrap” because you have to click that you agree. But even if you did read it, you’d have no idea what was built into the document. And you couldn’t do much about it. Most people don’t try.
The notion of consent is gone. The only excuse for the rules that enforce this nonsense is what conservative law and economics advocates call private ordering – of, by and for companies and corporations – the rest of us don’t have a chance.
Legally these are contracts of adhesion which should protect consumers. But courts are terrified to insist on reasonable provisions. Heaven help the consumer – our Supreme Court won’t.
The no-fault system has largely removed traffic accidents from the outdated tort system. But generally, despite what the insurance companies want you to believe, torts are just as bad. Suits over environmental injuries are expensive, difficult, and can bankrupt lawyers who try. The battle against the cigarette manufacturers took decades. The tort system can be strongly tilted against you.
It should be possible to treat drilling, whether off-shore or by fracking on land, as what the law calls ultra-hazardous activities. If courts treated activities that threaten to put toxins in our environment as ultra-hazardous, it should be somewhat easier to sue the companies and therefore the companies should be more careful. But don’t hold your breath or expect help from the legislature.
People were upset that the Supreme Court said that corporations have the rights of people. Actually they typically have much more. The law is very solicitous of corporations. Injury to ordinary folks is just so much roadkill to the courts – the damage that happens so the engines of the economy can roar ahead without keeping their eyes on the road.
No, I’m not against business. I’m against sloppy business, and I’m against rules that do not fully account for the damage to bystanders, the people who pay with their lives and health for the damage done in the name of progress.
I’m for real law reform, not fabricated “reforms” designed only to protect companies and their insurers from responsibility for the damage they do.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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