Baseless lawsuits encourage the notion that individuals can engage in risky behavior, then force someone else to pay for their mistakes. That’s the premise underlying litigation against manufacturers of cigarettes, guns, lead paint, fatty foods, and alcoholic beverages.
Meanwhile, our antitrust laws have been co‐opted by frustrated competitors who curry favor with bureaucrats to attack market leaders such as Microsoft. In effect, antitrust is now a subsidy used to promote the parochial interests of politically favored companies.
In Shakedown, Robert A. Levy uncovers the worst abuses of a judicial system run amok, then offers concrete proposals to fix the problems. Here are some of the author’s hard‐hitting criticisms:
Tobacco. Today, the cigarette companies; tomorrow, anyone could be victimized. The rule of law has yielded to ambitious state attorneys general, social engineers, and contingency‐fee trial lawyers stalking an outcast industry.
Guns. To circumvent the legislature, anti‐gun advocates have taken their battle to the courtroom. The courts must not entertain lawsuits based on bizarre legal theories that seek to have every “victim” compensated by corporate America.
Tort Reform. Many companies believe that no matter how responsibly they behave, they’ll be held liable for the negligence of others. That problem is real, but tort law is up to the states, not Congress.
Antitrust. The concept of antitrust is flawed to the core. Markets move faster than antitrust ever could. Consumers can unseat any product and any company no matter how powerful. Antitrust, if it ever was needed, is now obsolete.
Shakedown is a sweeping indictment of abusive lawsuits in the United States and a blueprint for overhauling our antitrust and tort laws.
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation’s founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privilege or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost.
Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open‐ended, construing it so as to better protect the rights retained by the people.
As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond.