In throwing out the Fibreboard settlement last week, the Supreme Court majority pleaded with Congress once again to clean up the asbestos mess legislatively. That said, the Justices refused to countenance a quick-fix settlement sent up by the lower courts, because the deal seemed to be aimed more at paying off the lawyers and clearing the docket than at procuring justice for each present and future claimant.
Justice Breyer, in his dissent, also pleaded with Congress to intervene, but he figured this was no time for fine scruples. He argued that the lower courts need all the leeway they can get to clear a mudflow of litigation. So what if not every plaintiff enjoys his "day in court"?
We can sympathize with both views, but they don't tell the half of it. Having wrecked the U.S. legal system, the trial lawyers are setting up their own. Chairman Henry Hyde's House Judiciary Committee begins looking into asbestos this week, but the deeper problem is our lawsuit culture and the bandits who foster it.
Asbestos litigation has gone on for decades, costing billions of dollars and driving a dozen companies into bankruptcy. Some 60% of all monies have been consumed by the lawyers and assorted parasites. A signal moment was the leakage of a memo from the Texas law firm of Baron & Budd, complete with photos, used by the firm to, ahem, freshen memories of claimants about which products and brands they were exposed to. Asbestos lawsuits have become a mass-production enterprise, with hundreds of thousands of claimants, nobody knowing or caring which ones are really sick.
But don't ask Congress to act: The Democrats are owned by the trial lawyers. That was finally made explicit this week when news stories noted that Mr. Clinton's apparent support for the anti-liability Y2K legislation had infuriated his own party, meaning the trial lawyers. Asbestos manufacturers tried last year to push legislation, but scattered like the wind as soon as Joe Rice of the Ness Motley firm said "boo." Mr. Rice and friends, who expect to pull down a big chunk of tobacco change, have deep pockets from which to finance their guardian angels in politics.
But at least the Supreme Court has the final say by throwing out settlements that aren't fair and honest, right? Nope, we've moved way beyond that. One sign is that Owens Corning, which took over Fibreboard last year, was strangely not heartbroken by last week's decision. Maura Abeln, the company's general counsel, even bad-mouthed her own case in the Houston Chronicle.
Because the Supreme Court concerns itself majestically with the law, it can't very well take practical note of what's going to happen next. The Fibreboard plaintiffs will be rolled seamlessly into a private deal that Owens Corning has worked out with 80 law firms, representing the asbestos bar.
The lawyers have agreed to exercise restraint in throwing new claims at the company, but otherwise they'll be acting as advocate, judge and jury rolled into one. Whoever they put forward as a client will automatically be entitled to a fixed sum without ever filing a case or going to court. In return, Owens Corning's liability will be capped. The sum originally came to $1.2 billion, but now another $1.9 billion from Fibreboard's insurance companies will be thrown into the pot.
The lawyers call it "privatization" and it doesn't work unless they can capture all the new plaintiffs, steering them away from the courts and into the privately administered procedure. The law firms openly refer to themselves as an "oligopoly." One threat used by Mr. Rice and colleagues was that any alternative legislative effort might draw "new entrant" law firms seeking a piece of the jackpot, upsetting the oligopoly's ability to control the flow of claims and enforce the caps.
So it's worse than you think: The trial lawyers have become a threat to the very Constitution. We've already seen them enacting a national cigarette tax, usurping the legislative function. Now asbestos defendants are being invited to opt out of the USA legal system in favor of one run by the USJR (United States of Joe Rice).
You can't blame the companies. Neither the courts nor Congress stepped in to save the silicone breast-implant companies when the trial lawyers decided to clean out the till and bankrupt the industry based on phony medical claims repudiated in one scientific study after another. The irony of Fibreboard is that it sends the same message, though unintentionally: The courts can't help you. Politicians won't help you. The only alternative is to cut the best deal your can with the plaintiff-bar mafia. Welcome to America.
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