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The Crusading Lawyers
[January 28, 2003]

By S. M. Oliva

Lawyers are supposed to act as advocates, defending the individual rights of their clients before the law. In any controversy, be it civil or criminal, the case must revolve around the parties, not their counsel. Yet that is no longer a guiding principle for many members of the bar. Every day bares witness to new abuses of the judicial system by “crusading lawyers” that seek to enrich themselves at the expense of their clients and, more importantly, at the expense of individual rights.

The most recent crusaders are the plaintiff’s attorneys seeking to destroy the fast food industry through litigation. At the head of this monster is John Banzhaf, who holds the dubious title “professor of public interest law” at George Washington University. Far from being a teacher and responsible advocate, however, Banzhaf openly proclaims his intent to use the courts as a tool of social engineering. He invented the idea of suing McDonald’s on the theory that they bear responsibility for their customer’s obesity. Rather than represent a client who came to him with a claim, Banzhaf manufactured clients so that he could act upon his whim in the courts. He is the plaintiff in all-but-name.

Banzhaf is a confirmed opponent of individual rights. He believes that society—meaning self-appointed elitists such as himself—have the moral right to dictate the choice and acts of individuals. If he feels that people shouldn’t eat fast food, then society should accept his judgment; if they don’t, he’ll use the courts to compel acceptance. Fundamentally, Banzhaf believes consumers are too stupid to act for themselves, thus they require the superior judgment of lawyers.

Of course, Banzhaf is hardly the only attorney to act this way. Consider Johnnie Cochran, the attorney best known for his defense of O.J. Simpson. Recently, Cochran stooped to the level of crusader by going after the National Football League. Cochran says there aren’t enough African-American head coaches in the NFL. It’s not that Cochran represents a specific coach who feels he was improperly denied a promotion. Cochran has no actual client, yet he’s threatening litigation if the NFL doesn’t remedy his grievances. And they are his grievances. Yet somehow, the major media reports Cochran’s attacks as if he has standing to pursue this matter. It seems that Cochran’s mere standing as an attorney—combined with the bias of certain media reporters on this issue—gives him credibility on this issue. Eventually, the NFL may negotiate a “settlement” with Cochran to prevent a lawsuit. This only proves the problem—lawyers acting in the absence of an injured party.

At its best, the law subjects society to moral principles. Law is what enables man to resolve differences without resorting to force. But the more recent trend in America is to use law, not as means of preventing force, but as a tool of force itself. Rather than protect individual rights, the law of crusading lawyers exists as a form of political lottery; the more persistent you are in pursuing objectively false claims, the more successful—and wealthy—you will become in the end. By cloaking their acts in false righteousness, the crusading lawyers manage to turn the courts into an instrument of social engineering far more powerful than even Karl Marx would have imagined. Litigation has become, in many respects, a genuine crusade.

In one sense, Banzhaf and Cochran are following in the footsteps of the most successful crusading lawyers in America—government regulators. In the past 50 years, lawyers representing regulatory agencies have acquired enormous power over the American economy through the systematic use of force and abuse of judicial process. There is no better example of this than the lawyers that “enforce” antitrust laws at the Department of Justice and Federal Trade Commission. FTC and DOJ attorneys have perfected the art of controlling others without even setting foot in a courtroom. Thanks to Congress’ enormous grant of legal power, antitrust regulators can simply coerce a settlement from defendants by threatening expensive litigation heavily rigged in the government’s favor. The overwhelming majority of antitrust allegations result in immediate settlements before a trial even gets to the discovery phase.

Just yesterday, Village Voice Media and New Times Media settled an obviously bogus antitrust claim brought by DOJ lawyers. Both companies deny any illegal activity, but said they had to settle without trial because of the enormous costs of litigation. The DOJ knew they had an overwhelming advantage, which is precisely why they brought this case. In recent years, it has become standing policy at the DOJ and FTC to target businesses that have no reasonable means of fighting back. Thus, regulation over substantial sectors of the U.S. economy can be obtained without firing a single shot—or in this case, without calling a single witness.

While Congress must take ultimate responsibility for permitting lawyers to run amok like this, the judiciary also must do its part. Judges should impose severe penalties upon crusading lawyers that use the system as their personal regulatory agencies. Lawyers like Johnnie Cochran should receive reprimands and fines to discourage him from hunting for cases without plaintiffs. In extreme cases like John Banzhaf—a lawyer that habitually abuses the system for the purpose of violating individual rights—lawyers must be disbarred permanently to send a clear message.

 

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