MAY I CALL WALTER OLSON an icon? I’m going to call Walter Olson an icon.
Walter Olson is an icon of the tort reform movement. He is the author of The Litigation Explosion, and he ran the blog Overlawyered for more than 20 years. Fishing around on the Internet just now, I see that Walter has been pronounced the “intellectual guru of tort reform” and “America’s leading authority on over-litigation.” Indeed! An even better endorsement comes from Elie Mystal, who once called Walter an “establishment lapdog” and “defend[er] of the evil Wal-Mart and other enemies of galactic peace.” Hear, hear.
I made a cameo appearance or two on Overlawyered in its later days. That was a great honor. It was an even greater honor, though, to welcome Walter onto the Tech Policy Podcast the other day.
The plaintiffs’ bar have come for their pound of flesh from social media platforms. They’ve convinced school districts across the country to file lawsuits against Facebook, Snap, TikTok, and the like, alleging that these services are addictive and harmful to students. The schools want the platforms declared a public nuisance.
Walter penned an article on the litigation—“Courts Should Reject School Districts’ Suits to Childproof the Internet”—for Ricochet. As Walter explains in the piece, “lawsuit campaigns like these” are “cooked up in the offices of lawyers and consulting experts and sold to public administrators.” Similar to many other such campaigns, Walter goes on, these lawsuits have “trouble coming up with any particular action platform operators took that, in fact, violated any law on the books.”
Much of my conversation with Walter revolves around what a woolly concept “public nuisance” is. Once upon a time, the idea wasn’t so hard to understand. It generally involved land use. If, for instance, you let an unusual smell waft off your property, someone exposed to the stench could bring a public nuisance action and demand that you knock it off. As Walter spells out on the pod, however, public nuisance law has now morphed into something else entirely:
The new rethinking of nuisance—and law professors helped, but a lot of this was dreamed up in the offices of plaintiffs lawyers—was, you know, can’t we analogize to things that people do that make wider environments more troublesome [in ways] that may affect thousands or millions of people, not just a couple of neighbors? Aren’t people creating social nuisances? And phrased that way, of course, you have a lot of people with a lot of causes that like to latch on to it. One of the earlier groups that latched on to nuisance law or the nuisance analogy was anti-porn crusaders. They were not mostly concerned about people who lived right next to porn shops. They were mostly concerned about finding a way to ban the contraband across wider areas by declaring it to be a social nuisance.
Plaintiffs’ lawyers have aimed public nuisance suits at firearms, herbicides, vaping pens, fossil fuels, lead paint, pharmaceutical drugs, and more. In its current guise, the doctrine is used to legislate through the courts and to enrich attorneys—not necessarily in that order. The usual strategy is to concoct a theory of liability from “thin air plus indignation,” as Walter phrases it, and then extract a massive settlement before trial.
Check out the full episode. Walter and I cover how tort law has been distorted over the years, why the schools’ lawsuits should fail, the folly of designing products in the courtroom, the misery of litigation, and more.
WHILE SPEAKING WITH WALTER, I wandered into a digression about an opinion by Judge Frank Easterbrook. My thought didn’t hang together very well, so I cut the clip from the episode. But Judge Easterbrook is amazing, so let’s have a look at another of his opinions—one of my favorite opinions by any judge, on any subject.
Easterbrook sees underneath the surface. He excels at describing what’s really going on. His concurring opinion in Carroll v. Otis Elevator Co. (7th Cir. 1990) is a great example. The first paragraph sets the scene:
A department store’s clerk gets on the up escalator. Suddenly it stops; because she was not holding the handrail she falls and injures her knee, which requires surgery. . . . In exchange for [an] assured payment without regard to fault under the workers’ compensation law, [her] employer gets protection from liability in tort. So the clerk sues the manufacturer of the escalator, which does not have the workers’ compensation bar, demanding money on account of the pain and suffering that workers’ compensation does not recompense. Her theory is strict liability because the escalator’s design made it unreasonably dangerous.
The case’s true villain, Easterbrook notes, is not on the stage. “The escalator stopped because a prankster pressed the emergency stop button. Bad turn for the day accomplished, he fled and has not been identified.”
The employer has paid up, and the kid who halted the escalator is nowhere to be found. Yet the clerk sues the manufacturer and wins. She convinces a jury that the escalator’s red emergency stop button is an attractive nuisance to children. The jury finds, in effect, that the escalator is defective.
But “why,” Easterbrook asks, “should escalator design be a question for juries?”
No one supposes that courts would design escalators well, even with the help of many experts, if given that task. Why then ask them to identify defects after the fact? The ex post perspective of litigation exerts a hydraulic force that distorts judgment. . . . Some persons will be injured when caught in the escalator; these costs go down as emergency stop buttons are easy to find and press. Others will be injured as escalators suddenly stop; these costs will go down as stop buttons are hard to find and press. . . . Because the expected costs of stops are small, designers make buttons easy to find and press, to reduce the costs of the rarer, but much more serious, entanglements.
Escalators, Easterbrook observes, are safer than stairs. Yet facts like that are often overlooked in the courtroom:
Come the lawsuit . . . the passenger injured by a stop presents himself as a person, not a probability. Jurors see today’s injury; persons who would be injured if buttons were harder to find and use are invisible. Although witnesses may talk about them, they are spectral figures, insubstantial compared to the injured plaintiff, who appears in the flesh. Trained scientists put this out of mind and concentrate on the numbers, knowing that design decisions affect many persons other than this one, and that the interests of all must be held equally dear. . . . [N]o matter how conscientious jurors may be, there is a bias in the system. Ex post claims are overvalued and technical arguments discounted in the process of litigation.
By its nature, Easterbrook concludes, the tort system discounts clear thinking or statistical rigor. It invites juries “to apply hindsight and to favor the interests of visible victims over invisible losers—those who must pay higher prices, who will be deprived of beneficial products, or who will be injured in turn if manufacturers change their designs to be jury-proof.”
Read it all. It’s got an optical illusion and everything.
My talk with Walter Olson:
Tech Policy Podcast #347: When Schools Scapegoat Social Media (June 2023).
More from me:
The Tort Bar vs. Science. Forbes.com (Aug. 2019).
The Tort Bar vs. Small Businesses. Law & Liberty (Aug. 2019).
The Tort Bar vs. Electricity. Forbes.com (April 2019).