Why People Tell Lawyer Jokes

The day before the second anniversary of the September 11 terrorist attacks, a federal judge in New York ruled against dismissing a lawsuit brought against Boeing and the Port Authority by victims of the attack. His actions remind us how far we've gone in becoming a nation ruled by lawyers and judges, and not by the people and their elected representatives. Federal judge Alvin Hellerstein began his opinion by saying that "the injured, and the representatives of the thousands who died from the terrorist-related aircraft crashes of September 11, 2001, are entitled to seek compensation." Well, that's true, but the question is: from whom? In the aftermath of the attacks, Congress created the Victim Compensation Fund. The goal of the Fund is to compensate victims while discouraging potentially ruinous litigation. Not surprisingly, the trial bar didn't like what Congress did. So it brought a suit against Boeing and the Port Authority of New York and New Jersey, which owned the World Trade Center. It claimed that the defendants had failed to adequately protect against the risk that someone might hijack an airliner and crash it into a tall building causing physical injury and death. Could you imagine a judge buying that? Hellerstein did, ruling that such a risk was "foreseeable," and has now allowed this lawsuit to proceed. This ruling paves the way for thousands of September 11-related lawsuits. Not only will this delay the ultimate resolution of the cases but, in most instances, it will leave the plaintiffs with less than they would have received from the Fund -- though the lawyers will get a lot more. If Hellerstein's ruling is allowed to stand, and the plaintiffs prevail, the measures that aircraft manufacturers and developers might have to take to protect themselves from liability are the stuff of black comedy: self-destruct buttons in the cockpit, a limit on building height, or go out of business. This is precisely what Congress sought to prevent. Following the unprecedented events of September 11, Congress and the president looked for a response that balanced the competing interests affected by the attacks. They sought a way to compensate victims without setting precedents that would make it nearly impossible for airlines and other businesses to operate. Nobody got everything they wanted, but that is how representative government works. Or at least is supposed to work. For nearly three decades now, the courts, both federal and state, have been disregarding the democratic process. Most Christians are aware of how judicial activism has worked in areas like abortion, homosexuality, and other social issues. But these areas are only part of a larger story: that is, how what the founders considered the "least dangerous branch" of government has come to set the agenda for American life. Allowing these lawsuits in New York is just the latest in a long line of examples of judicial overreaching. And this is one good additional reason why many of us are supporting the marriage amendment to the Constitution. It will begin a very important, necessary process in American life -- rolling back the courts and reestablishing the ability of Americans to govern themselves through their elected representatives. For further reading and information: Ron Marsico and Mark Mueller, "Judge: No immunity for airlines," New Jersey Star-Ledger, 10 September 2003. Thomas Sowell, "Risky business," Townhall.com, 16 September 2003. Daniel Ruth, "Uh-Oh, Mohamed Atta Once Shopped at Wal-Mart," Tampa Tribune, 15 September 2003. Learn more about the September 11th Victim Compensation Fund. BreakPoint Commentary No. 020110, "Playing Solomon in Today's Legal Culture." (Archived commentary; free registration required.) Roberto Rivera, "Jackpot," BreakPoint Online, 2 January 2002. Robert Bork, "Coercing Virtue: The Worldwide Rule of Judges," American Enterprise Institute, 8 September 2003. Mitch Muncy, ed., The End of Democracy?: The Judicial Usurpation of Politics (Spence, 1997). BreakPoint Commentary No. 030807, "The Struggle for Marriage."

09/18/03