Tuesday, February 17, 2009

Supreme Tortship

I recently read Chistopher Buckley's very funny novel, Supreme Courtship, and thought I'd take this opportunity to make a few points about the book and about the way in which law is portrayed in pop culture. (Spoiler Alert: I don't give away anything below that would undermine the pleasure of the book, but those who like to know next to nothing of a book's plot before reading it should probably stop here.)

The book begins with a President attempting to fill a Supreme Court vacancy. Obstructed in his first two nominations by a self-important and bloviating Chair of the Senate Judiciary Committee who thinks he himself is best qualified for the position, the President eventually nominates one Pepper Cartwright, good-looking, gun-toting, sassy judge on a popular tv show (something like Judge Judy or The People's Court). Hilarity ensues.

During the Fall, Buckley made the rounds of the talk shows, in part because of the acceptance of his offer to resign as a columnist at the National Review (founded by his late father, William F. Buckley, Jr.) in penance for having endorsed Barack Obama for President in a piece for The Daily Beast. Chris Buckley understandably took the opportunities to pitch his book, although in a way that strikes me now--having read the book--as somewhat overstating his own prescience. Buckley pointed to the similarities between his book and the 2008 Presidential campaign as it unfolded after he wrote the book. He highlighted the fact that the Democratic Party had nominated for VP a bloviator who had been the Senate Judiciary Chair and that the Republican Party had nominated for VP an attractive, folksy, gun-toting woman with non-traditional qualifications.

Why are the similarities not so prescient? Well, for one, Senator Dexter Mitchell is so obviously based on Joe Biden that Buckley shouldn't score any points for having predicted the existence of Biden---and in the book, Mitchell does not become Vice President. Nor, for that matter, does Cartwright run for VP. As for her similarities to Sarah Palin, they strike me as less important than the differences. Cartwright was not angling for a Washington job and even tries to turn down the offer to nominate her, whereas we know Palin is quite ambitious (a fact that surely does not distinguish her from other politicians). Palin's core appeal was to religious Christians whereas Cartwright, although the daughter of a mega-church preacher, is an atheist. And perhaps most importantly, Cartwright is, well, smart and educated: She knows Shakespeare, she was an excellent student at Fordham Law School, and when true to herself she displays not just folksiness but balanced judgment. Enough said.

Most of the humor of Supreme Courtship stems from its exaggerations. For example, the confirmation process as portrayed for the two nominees who precede her and for Cartwright herself is ridiculous---albeit in a way that rings true: minor personal peccadilloes take on preposterous significance, while substantive views are danced around.

I do have one substantive objection to Supreme Courtship that will seem at first (but not, I hope, in the end) like nit-picking. A case that takes on central importance to the plot involves the question whether a criminal can successfully sue a gun manufacturer for the malfunction of his gun during the commission of a crime. In Supreme Courtship, the case makes it to the Supreme Court, but this would be impossible in the real world: The issue presented is entirely one of state law. Although the lower federal courts would have had jurisdiction because the plaintiff and defendant are from different states (and thus the case falls within federal diversity jurisdiction), the Supreme Court has long interpreted the statute governing its appellate jurisdiction as only authorizing Supreme Court review of such cases where the result of the case turns on the resolution of an actual contested issue of federal law.

Before you accuse me of being the sort of pedant who objects to the "whoosh" sound made by the Enterprise at the opening of Star Trek---there being no air, and thus, no sound, in space---understand that my jurisdictional objection has a substantive point: I believe that Buckley chose a torts example, notwithstanding the jurisdictional problem, because he wanted to illustrate a conflict between the law in its technicality and justice in its commonsensicality. (Buckley also illustrates this conflict by having his Justices constantly including Latin phrases in their opinions and even in their casual conversation.)

Of course, Buckley wants us to think, a criminal should not be able to sue a gun maker for his gun's failure; any idiot can see that, just as any idiot can see that people who smoke should be responsible for the damage it does to them (a point, albeit not the only point, of the libertarian Buckley's Thank You for Smoking) and that people who spill hot coffee on themselves should be responsible for the damage. The fact that the law sometimes allows recovery in these cases supposedly shows how out of step American tort law is with common-sense values.

Yet in fact, nearly the opposite is true. In the Supreme Court, hyper-technicalities are most frequently used to defeat the claims of deserving plaintiffs, as in the now-Congressionally-overruled Ledbetter case or even worse, in Bowles v. Russell (which I discussed here.) Conversely, the American tort system--though a highly inefficient means of delivering compensation to those who have suffered injuries--increasingly imposes arbitrary limits on jury awards to deserving plaintiffs and rarely sustains grossly disproportionate recoveries. Indeed, notwithstanding its iconic status as poster case of the tort system run amock, the McDonald's coffee case nicely illustrates the point: At the end of the day, the plaintiff, who suffered third-degree burns, only recovered compensation for the difference between the injuries she would have suffered from ordinarily hot coffee and the injuries she in fact suffered from the dangerously hot coffee that McDonald's served despite repeated complaints. And vindicating the beneficial regulatory effects of tort law, McDonald's now serves its coffee at less dangerously high temperatures. (For a sustained debunking of this and other torts-gone-wild chestnuts, see Why Lawsuits Are Good for America by Carl Bogus.)

So, armed with that warning, enjoy Supreme Courtship.

Posted by Mike Dorf