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Fat Chance

Mises Daily: Thursday, May 15, 2003 by

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[Posted May 15, 2003]

As we observe the current frenzy of lawyers preparing to sue McDonald's and Burger King—and even suing Kraft Foods, the maker of Oreos—for allegedly causing their clients to suffer from obesity, we cannot help but wonder what lunatics have taken over the U.S. legal system.

This current litigation, which is done in the name of common law torts, seems on the surface to have the trappings of the historical tort system. There exist the allegedly injured parties (obese people) and the perpetrators of the "injuries" (fast food restaurants).

Thus, reason those who are principles in these cases, people should be able to sue McDonald's, Burger King, and Kraft in the courts and permit judges and juries to decide if the alleged injuries deserve compensation from those firms. That's how the common law legal system has worked for centuries, and this is simply a continuation of that tradition, according to the current justification.

The only problem with this line of reasoning is that it is bogus to the core. While many writers on this page have eloquently dealt with the economic damage wrought by government on the regulatory and spending/taxation fronts,  the continual erosion of civil and criminal law in the United States also has the effect of limiting freedom and destroying our material standard of living.

Furthermore, at the present time, this set of legal trends shows no sign of abatement. While the corpse that was once common law may still look on the surface to be such, the final product is no more genuine than the human bodies invaded by aliens in that famous cult movie.

Here are the facts of the case. A group of crusading attorneys, led by John Banzhaf, who is fresh from the tobacco wars, is planning to file a series of lawsuits around the country charging that McDonald's and Burger King have prepared unsafe foods that not only cause obesity, but are also addictive. Banzhaf plans to introduce an article in New Scientist Magazine that hypothesizes that some fast foods "cause chemical changes in the brain the same way as nicotine and heroin," according to a recent news article.

In a related development (the timing of which some of us are suspicious is not just coincidental), Tommy Thompson, secretary of the U.S. Department of Health and Human Services (Reuters refers to him as the "U.S. health czar") has threatened to single out fast food firms unless they bend to his directives in changing their menus. "I'm going to start giving out awards and singling out ones that are doing good and the ones that aren't," he declared.

The strategy will be much like what was done in the tobacco litigation, in which attorneys will claim through their clients that the fast food restaurants enticed them through misleading marketing claims, addicted them to their products, then contributed to their obesity. Thompson certainly threw some gasoline on that fire by claiming that "the junk food explosion" is "cost(ing) the government $117 billion each year in obesity-related health care costs."

Such a strategy, while likely to be successful in the current legal climate, clearly does not conform to the standards of common law, which has helped sustain the phenomenal economic growth in the United States since the beginnings of this country. Indeed, the success of the tobacco litigation is due precisely to the fact that the courts in effect have abandoned common law.

For the tort system within common law to work in a just (and, may we add, economically efficient) manner, a number of things must be securely in place. There has to be an injury, and the source of that injury must be able to be identified.

For example, in 1985, one of us was in a serious car accident that resulted in hospitalization, with the mishap occurring when someone drove across the highway from a side street and caused an unavoidable collision.There was a clear injury (broken sternum), and the cause could accurately be identified, which is the second requirement for the tort system to work.

Also, personal responsibility must be exercised. If someone makes a choice without being coerced into it, and if fraud is not involved, then one is considered to have made the choice freely.

Contrast this with what is happening with the seemingly eternal asbestos litigation that has swallowed up company after company. As David Laband has so well put it, the courts have created a "judicial commons" in which the cases filed by individuals who can demonstrate no injury due to exposure by asbestos have overwhelmed the system, leaving many of those with legitimate tort complaints out in the netherworld. When common law is abandoned, something appears that seems to approximate it on the surface but is alien to the historical legal system, as the asbestos racket so eloquently demonstrates.

Before the government's latest assault upon tobacco companies, no one had ever won a product liability lawsuit against those firms. First, jurors concluded that individuals chose to smoke, and although it is true that the nicotine in tobacco has addictive qualities, the world is full of ex-smokers.

Furthermore, people have been warned by a blizzard of government-sponsored anti-smoking materials from television advertisements to warnings printed on the packages of tobacco products, so jurors reasonably decided that individuals who smoked did so by choice and could not blame tobacco companies if they developed smoke-related illnesses.

To put it another way, once upon a time, the courts in smoking cases applied common law standards. Since the governmental jihad against tobacco companies began in the 1990s, however, the rules have been changed and common law liability standards for tobacco have been tossed out the window. People can now claim in court (under oath) that they never heard anything about health hazards from tobacco, that they were hopelessly addicted, and that they had no choice in the matter.

While such nonsense may appeal to jurors and judges, the fact that people can openly and shamelessly lie in court without any prospect of punishment means that when it comes to tort law in this country, statist ideology has won over private property rights—and common sense. With the coming legal attacks on fast food restaurants will come yet the dismantling of one more barrier to the safeguards that law once provided in this country. As Paul Craig Roberts recently pointed out, law is supposed to be "a shield of the innocent." Today, it is now brandished as a weapon by lawyers and the government against law-abiding citizens.

It is difficult to imagine the damage that this latest round of lawsuits will cause, not only for the companies that will be ruined in the future but also for all of those firms that will be ripe targets for lawsuits because one more set of legal safeguards has been eviscerated. First, because the lawyers will claim that McDonald's marketing campaigns were nothing more than ploys to hoodwink youngsters into eating poisonous food, any marketing campaign for any firm will become fair game for the trial lawyers.

Second, by lowering standards of addiction (which they claim is a form of coercion), the primacy of individual choice will be further eroded. Individual choice simply will not matter, as anyone, anytime will be able to claim coercion.

Third, the lawyers will demonstrate once again that all that is needed to loot a company is to make some claims backed up by junk science, and be heard in the courtroom of a sympathetic judge. While the fast food companies may (and I emphasize may) win a few early battles, in the end they will be mowed down by the legal juggernaut that will then turn to other industries.

Torts in the common law tradition once served as a wonderful mechanism to help regulate economic exchange. It provided protection for individuals who truly were injured by fraud or negligence caused by others.

That is no longer the case. Today, torts are simply a moneymaking entity for law firms and a vehicle for people who wish to destroy the institutions of private property and free enterprise by manipulating the law. Indeed, the law has ceased being a shield and instead has become a sword to be used by the state and by all who wish to destroy what was once a great civilization.

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William Anderson, an adjunct scholar of the Mises Institute, teaches economics at Frostburg State University. Send him MAIL. See his Mises.org Articles Archive. Candice Jackson is an attorney for Judicial Watch.