BreakPoint
A young woman I'll call Susie Smith has a weight problem: She's five feet, six inches and weighs 270 pounds. Why does she weigh twice her healthy weight? Genetics? Poor nutrition? Lack of exercise?
No! McDonald's. Smith claims that she is obese because "her regular diet included an Egg McMuffin for breakfast and a Big Mac meal for dinner." And that is why she and other overweight people are suing McDonald's.
Their complaint may sound ridiculous, but it points to a serious problem: the increasing amorality of the law.
Chris Rangel, a physician who also runs a website devoted to medicine and public policy, doubts Smith's description of her eating habits. He writes, "There is just no physical way for [her] to reach . . . 270 pounds . . . by eating an Egg McMuffin for breakfast and a Big Mac for dinner." Basic nutritional guidelines lead Rangel to estimate that Smith is probably consuming close to three times the calories she alleges in her complaint.
But even if Rangel is right, it won't matter -- at least not in today's courts. Historically, even if you assumed that fast food like McDonalds' caused obesity, plaintiffs like Smith could get nothing in court. That's because of legal doctrines known as assumption of risk and contributory negligence. If a plaintiff knew the risks and acted anyway, or if she, through her own negligence, contributed to her injuries, she was barred from recovering damages.
For many years these doctrines allowed tobacco companies to prevail in court. Everyone who smoked after 1964 when warnings appeared on packs of cigarettes knew the dangers and risks associated with smoking. This changed, however, when lawyers went outside the Anglo-American legal tradition and borrowed a concept from our therapeutic culture: addiction.
John Banzhaf, who played a key role in tobacco litigation, told USA Today that the concept of addiction was "a breakthrough" that led to their success in court. Portraying plaintiffs as addicts allowed juries to disregard questions of individual self-control and assumption of risk. Instead, they held the corporations responsible.
What's more, the concept of "addiction" is so elastic that it can cover almost any activity we find pleasurable. Thus, it was only a matter of time before it was applied to other areas where defendants have deep pockets -- like the food industry. In January, a federal judge dismissed the original lawsuit against McDonald's. However, he carefully explained why and then gave the plaintiffs thirty days to amend their complaints, which they did.
Even if the case is dismissed again, it is probably only a matter of time before someone gets to trial. Fast-food companies stand to become the Big Tobacco of the new millennium.
While this may please Banzhaf and the woman we call "Susie Smith," it should concern the rest of us. Our confidence in the law stems, in large measure, from the belief that law is about justice and is grounded in objective morality. Because of this, we know what is expected of us, and, just as important, we know when we have fallen short.
But when slippery ideas like "addiction" overrule common sense and prudence, confidence and certainty erode and, with them, confidence in the rule of law itself.
For further reading:
Jonathan Wald, "Lawyers revise obesity lawsuit against McDonald's," CNN, 21 February 2003.
Chris Rangel, "The attack on the Big Mac is back!", blog posted on February 23, 2003.
Sally Satel, "Fast food 'addiction' feeds only lawyers," USA Today, 11 March 2003.
Bruce Horovitz, "Obesity suit against McDonald's dismissed," USA Today, 22 January 2003.
"McDonald's targeted in obesity lawsuit," BBC News, 22 November 2002.
Julia Sommerfeld, "Fat suits: Who's to blame for flab?", MSNBC, 2 August 2002.
Bruce Bartlett, "Targeting 'Big Food,'" National Center for Policy Analysis, 3 April 2002.
Visit Overlawyered.com's page titled "What happened to personal responsibility?" for more commentary and links on frivolous lawsuits.
Roberto Rivera, "Beyond Freedom and Dignity: Under the Arches," BreakPoint Online, 15 August 2002.
BreakPoint Commentary No. 020822, "'It's Not My Fault': A Nation of Victims."
Big Macs and Big Money
A young woman I'll call Susie Smith has a weight problem: She's five feet, six inches and weighs 270 pounds. Why does she weigh twice her healthy weight? Genetics? Poor nutrition? Lack of exercise?
No! McDonald's. Smith claims that she is obese because "her regular diet included an Egg McMuffin for breakfast and a Big Mac meal for dinner." And that is why she and other overweight people are suing McDonald's.
Their complaint may sound ridiculous, but it points to a serious problem: the increasing amorality of the law.
Chris Rangel, a physician who also runs a website devoted to medicine and public policy, doubts Smith's description of her eating habits. He writes, "There is just no physical way for [her] to reach . . . 270 pounds . . . by eating an Egg McMuffin for breakfast and a Big Mac for dinner." Basic nutritional guidelines lead Rangel to estimate that Smith is probably consuming close to three times the calories she alleges in her complaint.
But even if Rangel is right, it won't matter -- at least not in today's courts. Historically, even if you assumed that fast food like McDonalds' caused obesity, plaintiffs like Smith could get nothing in court. That's because of legal doctrines known as assumption of risk and contributory negligence. If a plaintiff knew the risks and acted anyway, or if she, through her own negligence, contributed to her injuries, she was barred from recovering damages.
For many years these doctrines allowed tobacco companies to prevail in court. Everyone who smoked after 1964 when warnings appeared on packs of cigarettes knew the dangers and risks associated with smoking. This changed, however, when lawyers went outside the Anglo-American legal tradition and borrowed a concept from our therapeutic culture: addiction.
John Banzhaf, who played a key role in tobacco litigation, told USA Today that the concept of addiction was "a breakthrough" that led to their success in court. Portraying plaintiffs as addicts allowed juries to disregard questions of individual self-control and assumption of risk. Instead, they held the corporations responsible.
What's more, the concept of "addiction" is so elastic that it can cover almost any activity we find pleasurable. Thus, it was only a matter of time before it was applied to other areas where defendants have deep pockets -- like the food industry. In January, a federal judge dismissed the original lawsuit against McDonald's. However, he carefully explained why and then gave the plaintiffs thirty days to amend their complaints, which they did.
Even if the case is dismissed again, it is probably only a matter of time before someone gets to trial. Fast-food companies stand to become the Big Tobacco of the new millennium.
While this may please Banzhaf and the woman we call "Susie Smith," it should concern the rest of us. Our confidence in the law stems, in large measure, from the belief that law is about justice and is grounded in objective morality. Because of this, we know what is expected of us, and, just as important, we know when we have fallen short.
But when slippery ideas like "addiction" overrule common sense and prudence, confidence and certainty erode and, with them, confidence in the rule of law itself.
For further reading:
Jonathan Wald, "Lawyers revise obesity lawsuit against McDonald's," CNN, 21 February 2003.
Chris Rangel, "The attack on the Big Mac is back!", blog posted on February 23, 2003.
Sally Satel, "Fast food 'addiction' feeds only lawyers," USA Today, 11 March 2003.
Bruce Horovitz, "Obesity suit against McDonald's dismissed," USA Today, 22 January 2003.
"McDonald's targeted in obesity lawsuit," BBC News, 22 November 2002.
Julia Sommerfeld, "Fat suits: Who's to blame for flab?", MSNBC, 2 August 2002.
Bruce Bartlett, "Targeting 'Big Food,'" National Center for Policy Analysis, 3 April 2002.
Visit Overlawyered.com's page titled "What happened to personal responsibility?" for more commentary and links on frivolous lawsuits.
Roberto Rivera, "Beyond Freedom and Dignity: Under the Arches," BreakPoint Online, 15 August 2002.
BreakPoint Commentary No. 020822, "'It's Not My Fault': A Nation of Victims."
- Budziszewski, Written on the Heart: The Case for Natural Law(InterVarsity, 1997).
04/14/03
