- The Washington Times - Wednesday, March 29, 2006

Americans love lawyer jokes, even though our society depends on lawyers to preserve the rule of law. As a lawyer who has spent 30 years training lawyers, I have special regard for the profession. But sometimes lawyers lose sight of what makes sense, what serves our clients, what is reasonable to ask courts to do. Sometimes we should be the butt of jokes.

Recent headlines are a case — or cases — in point. I’m talking about the “fat” suits. Suits have been filed or threatened against McDonald’s, Viacom (parent of Nickelodeon cable network), Kellogg, Coca-Cola, and Pepsi-Cola, among others, casting Corporate America as the villain that is making our children fat. The lawyers pushing these suits see corporations as the parties responsible for raising our children right and courts as the place to resolve difficult social issues.

Childhood obesity is a serious health issue, just as America’s growing waistlines for grown-ups are a serious issue. The two, obviously, are related. A whole series of changes in our society — less need for manual labor in the home and workplace, more leisure time and sedentary activities, cheaper food and richer people, transportation that doesn’t require human energy — makes us less fit and more fat, whether we’re 8 or 80 years old.

Most of us can see that point in an instant. We understand that this isn’t an issue that has a single cause or that can be solved with a simple decree. We know that there isn’t someone who has single-handedly forced us to eat what we shouldn’t or drink too much or exercise too little. We make our own choices for ourselves and, as parents, for our children. Even when we don’t make ideal choices, we’re the ones best positioned to decide what is right for us and our kids, and to teach them what to do when we aren’t there.

That is the nature of liberty. And with freedom to make choices for ourselves comes personal responsibility for the choices we make.

Lawyers who make money from suing successful corporations, however, have good reason not to recognize any of these truths. They hope to collect multi-billion dollar fees with class action suits. The trick is to portray their targets as causing obesity, to show that the targets for their suits — the companies with enough money to make suing worthwhile — behave in ways that absolve parents of responsibility and that deprive young people of meaningful choice. Somehow, the corporations have to become responsible for the choices we make for ourselves and the values we impart to our children.

The goal is to make the companies that produce, advertise or promote foods that anyone my age grew up on appear as devious, deceptive purveyors of extremely dangerous products. The lawyers want people to see cereal or hamburgers or colas as time bombs cleverly disguised as food and drink, packaged to make them irresistible to kids. Not only are the food and drink makers responsible for what kids want, they’re also responsible for parents giving in to our children. That’s the theory behind the lawsuits.

Generally, our legal system performs pretty well, responding to valid claims and rejecting others. But “generally” isn’t “always.” Even the oddest claim, based on the strangest theory, finds a sympathetic jury on occasion.

When the claim is made in a class action suit, a bad decision can trigger staggeringly high money penalties. Plaintiff’s lawyers gain leverage from the threat and stand to profit if they can force a settlement. Often only the lawyers profit, while the supposed gains for others prove illusory.

Important social policy on complex issues now is being made through class action suits. Interest groups want government to regulate what we eat and drink, how we advertise products, and decide these matters for our children. Those groups haven’t been able to get their agenda adopted through the democratic process, so lawsuits are the final frontier — an opportunity to impose their vision on society through the back door. Their vision is not of liberty and personal responsibility but of social regulation in service of what they see as a better, healthier life.

Even if that vision was sound, it isn’t one that should be imposed on America through the courts. No party to this process — not the judges, the lawyers, the interest groups — can decide what is right for us and for our children, nor can they know the consequences of substituting liability for those who produce our food and drink in place of personal and parental responsibility. We should all be clear that it takes a parent — not a lawsuit — to raise a child.

Ronald A. Cass is chairman of the Center for the Rule of Law, Dean Emeritus of Boston University School of Law, and author of “The Rule of Law in America.”

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