Book Review : Judge’s Solutions to Liability Problem

The Product Liability Mess: How Business Can Be Rescued From the Politics of State Courts by Richard Neely (Macmillan/Free Press: $24.95; 176 pages)

“For every dollar received by the victims of product-related accidents, three to five dollars go to lawyers and administrators,” writes Richard Neely, a West Virginia appellate judge, in “The Product Liability Mess.” Social Security, by contrast, “administers a nationwide system of disability insurance for approximately 4 cents on each dollar paid to beneficiaries.” Why can’t we replace our slow, expensive and inefficient system of tort law with something better?

The problem, of course, is familiar enough. And the solutions proposed by Neely are not particularly radical or even surprising--he calls for the federal judiciary to establish a “federal common law” that will apply in all 50 states, thus standardizing and simplifying the laws for compensating people who are injured by product-related accidents. But “The Products Liability Mess” is a shocker, especially as the work of a sitting judge. Here is one legal treatise that variously reads like a political manifesto, the hot revelations of a muckraker, and the stump speech of some charming but caustic Southern pol.

A Combat Veteran

Neely describes himself proudly as a combat veteran of the Vietnam War who is today “a backwoods judge,” “the inside man at the judicial skunkworks,” and--significantly--”a politician.” He insists that “today’s problems of liability in general, and of product liability in particular, require new political strategies and not new legal theories.” And, rather startlingly, he adopts the tone and rhetoric of a crusader, not a jurist or a legal theorist: “The fact is . . . that too much brilliance, and too nice a regard for the intricacies of legal theories, can affect a person’s appreciation of how to deliver a bold blow to the political jugular.”

Neely characterizes our tort law system as “a massive, off-line, wealth-redistribution program that enjoys overwhelming popular support.” Any notion of merely reforming our current system of laws, he suggests, “is like admonishing alcoholics not to drink.” He predicts “an impending liability crisis” that can be prevented only by “a battle plan for a successful guerrilla campaign that will bypass entirely the intensely fortified political positions of a numerically and logistically superior opposing force.”

The villains of “The Products Liability Mess” are found in the state courthouse, where local judges, juries and lawyers resolve lawsuits “in a way to please their friends and neighbors.” What’s more, Neely insists, the courts of the 50 states (and those of Puerto Rico and the District of Columbia) require a manufacturer who does business in interstate commerce to play by 52 slightly different sets of rules. The result, he suggests, is a system that puts the defendant manufacturer at the mercy of plaintiff-oriented courts, who are likely to award large verdicts to their constituents.

The hero of Neely’s book is the U.S. Supreme Court, whose justices “are not real judges like me.” Rather, he characterizes them as “legislators who control a large percentage of all of our law through their decisions interpreting the Constitution or federal statues.”

Unlike state judges, who generally stand for election or confirmation at the polls, the federal judiciary is purely appointive and generally enjoys life tenure. Above all, Neely suggests that the federal judiciary enjoys a commanding view of the nation’s welfare, and is uniquely able to make dispassionate decisions about the tort law system.

Provocative Words

None of this is especially revolutionary, although I know quite a few personal-injury lawyers who will start dictating angry letters to the editor when they read Neely’s intentionally provocative words. (The fact is, however, that Neely does not bother to give us any real sense of how the new “federal common law” will differ from the laws now in effect, not does he spend much time or effort in contemplating the woes of injured victims.) What’s really shocking about “The Products Liability Mess” is Neely’s proposition that the only way to overhaul the product liability system is by “lobbying” the federal courts.

Of course, Neely defines lobbying as “persuading by factual argument and good reasoning,” which is not really lobbying at all--it is only good, old-fashioned lawyering. (Of course, Neely is so scornful of real lobbying that he characterizes the speaking fees paid to legislators by trade and industry groups as “outright bribes in the form of speaking honorariums.”) But Neely also calls for “a triumph of propaganda” in order to point out “the creative opportunities offered by a new, national common law” to sitting federal judges, especially the justices of the Supreme Court.

Neely’s book is never boring, if only because of his bluntness, his sarcastic humor, his insistently folksy wisdom, and his sometimes dubious gift for offering simple solutions to very complicated problems. I can’t say that I am persuaded by Neely’s answers to the problems of tort law reform--indeed, I can’t say that I know what his answers are. But if Neely set out to agitate, to provoke and to challenge--and, along the way, to entertain--he has succeeded well.