The Failure of Administration and Contracts and the Rise of Torts

Having just finished Thomas Geoghan's See You in Court: How the Right Made America a Lawsuit Nation, I can't recommend it highly enough. In it, Geoghan makes an interesting claim: the rise of torts--which he admits is not desirable--is the last resort of a society that has abandoned contracts and honest administration. In other words, the only recourse many citizens have is tort law, because institutions no longer are obligated to engage in ethical behavior. For example, Geoghan describes a case where employees were terminated without adequate warning of a plant closing:

I am now in a legal battle where we have to prove that the Department of Agriculture bothers to enforce the law at all.

Does that sound surreal? It sure does. But let me tell you about our suit with the owner of a chicken-processing plant. We are suing for his workers, under the so-called WARN Act, which requires a notice before a plant closing. In this case, the owner did not give the required sixty days' notice before he closed the plant. "But the Department of Agriculture shut me down," the owner argues. "How could I foresee that?" He argues that yes, he may have done bad things, and let rats run wild, and let rats shit on the chicken meat. And yes, it is even true that the inspectors of the Department of Agriculture gave him write-ups.

But here is the issue: Was it reasonable for the owner to foresee that the Department of Agriculture would enforce its own regulations?

He had an argument: "I'm in the business, and they never enforce the law." Never. That was his claim. The Department of Agriculture is more or less a joke. Under Bush I, then Clinton, and then Bush II, it's gotten worse. "Everyone knows!" Now comes the ruling of the district judge, who is a liberal, a Clinton appointee: Yes, he says, it was unforeseeable. It was as if he took judicial notice that as a matter of common knowledge, the government does not enforce the laws.

Case dismissed!

I'm still in shock that the employer got away with such an argument. But he had a point. We cut back on inspectors. We don't impose fines. So he had no way of knowing that the Department of Agriculture would shut him down.

In other words, the application of the Rule of Law is the equivalent of an act of God. Completely arbitrary. Like a hurricane.

Yes, we appealed. I helped edit the brief. It was not my case, but my colleague's. All I did was strike out the word "rodent" and put in the word "rat." And the word "rat" came up a lot because the plant was filthy: full of rats and rat droppings all over the meat. The scary part was that the plant had gone on like this for years. The more we deregulate, and the more the inspectors are told not to threaten but to work in a "cooperative spirit," the more the rodents, and the rats, are free to go on dropping on our chicken wings and nuggets.

So what happened on appeal? Well, of course we argued that a judge cannot assume that it is "unforeseeable" for the laws ever to be enforced. In the United States, has the Rule of Law really come to this? Even though we got the District Court judgment reversed, we did not really win the point.

Instead, we have to go to trial. We have to have a trial to determine whether the owner of the chicken-processing plant has to believe the government when it says to him they're going to enforce the law.

When the only option left for most people is tort law because the notions of contracts, adminstration, and public trusts have disintegrated, some people (although not enough) will choose that option. While I don't agree with some of Geoghan's solutions, See You in Court is an interesting read.