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from: Amity Shlaes

Truth and Evidence vs. Dying Kids

Posted Monday, Feb. 1, 1999, at 11:09 AM ET

Dear EJ,

It's the lawyering part of this era that drives me crazy. I'm actually not thinking about Monica today. I'm thinking about the White House proposal to tax companies on the punitive damages they pay to plaintiffs in civil lawsuits (Jake Schlesinger, Greg Hitt, Wall Street Journal page A3).

The tax treatment of these lawsuits reflects a lot of what's wrong in our political culture. Right now, companies can deduct the costs of civil lawsuits as a business expense. If you oppose the scale of these suits, which seems a reasonable thing to do, that's not necessarily good. Getting to deduct the costs encourages companies to consider punitive damages as a mere cost of doing business. A sort of half-reason to tolerate what should be intolerable.

But removing that deductibility is also bad, because in effect, it's a tax hike. Tax damages on top of punitive damages on top of civil damages. Great. This is the administration's gift to future trial lawyers.

Speaking of future trial lawyers and their law schools, I happened to catch the old movie The Paper Chase on television this weekend. I even watched for half an hour. I kept thinking about what a contrast The Paper Chase presents to a new law movie I also saw recently, A Civil Action. In The Paper Chase, the law student (Timothy Bottoms) spends a monotonous first year scraping and bowing to that monument, the Law, as personified by his contracts professor (John Houseman). There is a lot that is dated about The Paper Chase. The way the students had to queue at the black dorm telephone because they didn't have their own room phones. The all-paper, screen-less, library. Even the volume of Timothy Bottoms' hair.

But the most dated thing is probably a scene in the lecture hall where a relatively intelligent student--an alpha, in the Harvard LS hierarchy--complains about the law not being fair. John Houseman crucifies him.

A Civil Action has Houseman figures too: Harvard professors who stand on principle. But in A Civil Action, these old guys are portrayed as etiolated establishment cogs. Irrelevant figures. The hero is the younger John Travolta lawyer, who sues big business America, alleging the companies poisoned little kids by polluting. He's supposed to be great because he ignores all the old rules about practicing law. In fact, the movie puts the law on trial, and convicts it. A Civil Action, the book, is a little more complicated. But the general message of A Civil Action, the media phenomenon, is clear: method, evidence, truth, all that, aren't important if dying little kids are your client. And A Civil Action, the book, is now being taught at dozens of law schools.

A Civil Action is nonfiction. The lawyers and judges whom the film blasts are all around. Some even got to comment on the movie and book in little docu-shows that were aired on TV at the time the movie hit theaters. WR Grace and Beatrice, the two companies that got sued, are also around. I bet they read Slate. I hope they send in e-mail.

the breakfast table
entries
1234567891011
from: Amity Shlaes

Truth and Evidence vs. Dying Kids

Posted Monday, Feb. 1, 1999, at 11:09 AM ET
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E.J. Dionne is a columnist at the Washington Post and a senior fellow at the Brookings Institution. Amity Shlaes, the author of The Greedy Hand: How Taxes Drive Americans Crazy and What To Do About It, is a member of the Wall Street Journal's editorial board.
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