The Republic of Virtue: How We Tried to Ban Corruption, Failed, and What We Can Do About It by F. H. Buckley

Author:F. H. Buckley [Buckley, F. H.]
Language: eng
Format: epub
Tags: Political Advocacy, Constitutional, Constitutions, Campaigns & Elections, Political Science, Political Process, Law, Corruption & Misconduct
ISBN: 9781594039713
Google: SDCdDgAAQBAJ
Goodreads: 35873063
Publisher: Encounter Books
Published: 2017-11-28T00:00:00+00:00

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The Silver Bullet

LET’S ASSUME that we would do better with a less plaintiff-friendly set of civil justice rules. That doesn’t get us very far if we can’t agree on what needs fixing. Cases that might appear to be egregious examples of a litigation-mad culture may look different on closer analysis. A classic example is the notorious McDonald’s hot coffee lawsuit from twenty-five years ago.

In 1992, a seventy-nine-year-old woman ordered a cup of coffee at a McDonald’s drive-through in Albuquerque. She placed the coffee between her legs. It spilled, burning her severely. She sued McDonald’s, and a jury awarded her $160,000 for her injury and $2.7 million in punitive damages. Outrageous, right? Well, not so fast. For one thing, she wasn’t driving when the coffee spilled. She was holding the cup between her knees and had removed the lid to add cream and sugar when it tipped over. The coffee caused third-degree burns, requiring skin grafts. She offered to settle for $90,000, but McDonald’s never offered more than $800. The jury was told that McDonald’s served coffee at 180 or 190 degrees; that a liquid at this temperature would cause third-degree burns; and that this fact was well known to McDonald’s. Also, the trial judge reduced the final award to $640,000.

So a case that became a poster child for a broken legal system doesn’t seem quite so outrageous after all. We may disagree on the merits of this or another court decision, but reasonable people can still agree on the need to restore the Framers’ vision of a judicial system that promotes a race to the top among states, while discouraging a race to the bottom.

The Way Back

The first principle for restoring integrity to our judicial system is that states should be permitted to compete with each other in the judge-made rules they offer in-state parties, but prevented from imposing unfair costs on out-of-state defendants. To do this, only one simple reform is needed: Whenever an in-state plaintiff sues an out-of-state defendant for a nontrivial amount, the latter should be given the option of removing the case to federal court. In other words, we should return to the pre-Strawbridge world of minimal diversity, where a plaintiff’s lawyer can’t bar the door to the federal courthouse by strategically joining an in-state party as a defendant.

To make this happen, all that is necessary is a legislative end run around Strawbridge’s complete diversity requirement. And that would work because, in Strawbridge, Chief Justice Marshall was interpreting the 1789 Judiciary Act and not the Constitution. If Congress thinks that minimal diversity makes more sense, it’s free to adopt that standard, which is precisely what Congress tried to do in the 2005 Class Action Fairness Act (CAFA).1 In two respects, however, CAFA failed to reflect the Framers’ vision of a corruption-free justice system. First, it spoke only to class or mass actions brought on behalf of a group of plaintiffs, and not to cases such as O’Keefe v. Loewen in which a single in-state plaintiff sues an out-of-state defendant and then invokes the complete diversity requirement.

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