Un-Making Law: The Conservative Campaign to Roll Back the Common Law

Feinman, a professor of law at Rutgers, issues this indictment of what he sees as a right-wing effort to protect the wealthy and powerful by transforming the common law. The driving force of this effort, he says, is an ideology centered on property rights and freedom of contract as absolute values. In Feinman's analysis, proponents of absolutism in property rights want to prevent the government from regulating how property is used. Regulation must be barred or made too expensive, which sacrifices the public good, such as environmental protection. Similarly, treating freedom of contract as absolute works against the interests of consumers, who find themselves bound by contracts they don't understand and may not even learn of until the transaction is over. Likewise, according to Feinman, the right is pushing the drive for tort reform, claiming that American business is being engulfed in a Niagara of expensive liability judgments. Feinman disputes this claim and identifies the stratagems used to deny compensation to those injured by defective products or incompetent medicine. When the standard for liability is raised, when fees to successful plaintiffs' lawyers are slashed, and when compensation to the injured is capped, Feinman argues, incentives for manufacturers to make safe products disappear. Feinman does a fine job articulating one side of a national debate of great importance.