BOOK REVIEW : A Closing Argument on the Legal System : THE LITIGATION EXPLOSION; What Happened When America Unleashed the Lawsuit <i> by Walter K. Olson</i> ; Truman Talley Books/Dutton; $22.95, 400 pages

The so-called “litigation explosion” has been with us long enough to spawn a whole literature of lawyer-bashing. Walter K. Olson, a journalist trained in economics, adds his voice to the chorus of lament in “The Litigation Explosion”--and he promises to reveal exactly how we can rid ourselves of the affliction of over - lawyering: “This book argues that America’s litigation explosion was not inevitable,” he announces at the outset, “and can be stopped.”

Most of Olson’s book, however, is a litany of problems, not solutions. The resort to law and lawyers as a method of resolving disputes has been “a disaster, an unmitigated failure,” Olson insists. He sees lawyering as inherently corrupting: “Few occupations offer such chances for dishonest persons to become very rich.”

He allows that a lawsuit may be preferable to a blood feud or a riot as a mechanism for resolving conflict--”the least bad of the extremities to which one might be reduced”--but he concludes that our legal system is nothing less than a moral and practical catastrophe.

“For all the many successes of American society, our system of civil litigation is a grotesque failure, a byword around the world for expense, rancor, and irrationality,” Olson writes in a typical moment of rhetorical coloratura.

“American’s litigation explosion has squandered immense fortunes, sent the cream of a nation’s intellectual talent into dubious battle, reduced valuable enterprises to ruin, made miserable the practice of honorable professions, and brought needless pain to broken families.”

Olson rounds up the usual gang of suspects: lawyer advertising, the contingency fee, the class action, and the hired-gun expert witness are all condemned by Olson as abusive practices that prompt (and prolong) meritless lawsuits.

To his credit, Olson goes beyond the tired old bogymen of the lawyer-bashers and offers a more thoughtful and probing analysis of what has gone wrong in our legal system. For example, he explains how certain technical aspects of the law--including “long-arm” jurisdictional statutes and the simplified rules of “notice-pleading”--have stoked the engine of litigation.

But Olson betrays certain prejudices of his own in his choice of targets. Notice-pleading, which replaced the hyper-technical and sometimes treacherous rules of pleading that date back to medieval England, was intended as a progressive reform that would open the courts to litigants who were unfairly excluded by the old practices and procedures. Olson, on the other hand, is a classicist who frankly prefers the good old days when the practice of law was so rule-bound that many claims and claimants were simply excluded from the courts.

“The evils of a more rationalist age, born of an inflexible insistence on pinning everything down, were made to give way to the more up-to-date and existential evils of letting everything float free in a roving inquiry into all the folly and mischief to be found in complex human relationships,” Olson writes. “What began as a page out of Dickens ended as a page out of Kafka.”

While Olson has thought deeply about the technical flaws in American jurisprudence, he has little or nothing to say about why Americans are so prone to turn their problems over to the lawyers and the courts. Indeed, he simply blames the lawyers themselves, as if they routinely shanghai their clients off the streets and drag them into court.

When Olson finally gets around to revealing his solutions to the litigation explosion, he mostly contents himself with a call for the increased use of sanctions against lawyers who file meritless suits and an endorsement of the “English rule” of litigation in which the loser pays the expenses of the winner. “Fee-shifting,” he concludes, “may be the only reform that could render tolerable today’s procedural system of push-button litigation on demand, if that system is one we want to keep.”

“The Litigation Explosion” appears to argue for legal reform, but it really makes the case for social as well as legal conservatism--it’s a manifesto of old-fashioned law and order. And even when the book is not wholly convincing, it is lively, challenging and even entertaining. Olson may not take it as a compliment, but he resembles nothing so much as an especially articulate and passionate lawyer making a closing argument to the jury.

Next: Brett Singer reviews “Swallow Hard” by Sarah Gaddis (Atheneum).