Another important item from Tuesday's news was that Senator Dodd led other Senators in tabling a bill that would have immunized from liability telcos who allowed the government to intercept callers' communications. I've been seeing a lot of grassroots efforts to stop this bill, and I'm gratified that they've succeeded (at least for the moment). On the other hand, I've held back on joining them. Not because I think it was right what the government or the telcos did, but because it was wrong. I'd rather save my political capital on clearly establishing its wrongfulness and preventing more, but this horse is already out of the barn. The thinking, of course, goes that if the telcos can be sued for their complicity in these kinds of government actions that will definitely help prevent it from ever happening again, but because there's some ambiguity about what they should have done I tend to think the efforts and energy should be devoted to clearly establishing it going forward.
Nonetheless, I noted with concern Ted Frank's related post on Overlawyered. In describing Dodd's successful efforts to table the bill he led with the headline, "Senate Dems: Trial lawyers' pockets more important than anti-terrorism legislation." Many commenters took issue with this characterization. I questioned how the record could possibly be construed to support the contention that these Senators had the interests of plaintiffs' lawyers first and foremost in their minds when they tried to scuttle the telco immunity bill.
He then posted an update:
Were the government's actions were illegal? Maybe, though reasonable minds can differ. But the question is different from the one of the dynamic consequences of finding private liability here. If corporations are held liable every time they agree to cooperate with the government on a national-security issue that is potentially ambiguous, they just won't cooperate at all without a court order. Perhaps that is the rule we want going forward. But if so, that policy choice should be the decision of Congress, not of unaccountable trial lawyers—and if it is the rule Congress wants, they should state it explicitly, so voters can hold them accountable for the consequences, rather than hiding behind trial-lawyer surrogates that later reward them for the earmarks to the trial bar. Should trial lawyers make terrorism policy?
To which I responded that his comments made sense, at least to the extent of questioning whether we want companies who cooperate with the government to be subject to citizens' private rights of action. Nonetheless, I continued, "Citing the trial bar as a factor in the policy decision is needlessly cynical and obfuscates the issue. The Senators who pulled the bill didn't do it at their behest, and if the answer to the question of whether we do want private rights of action against such companies does turn out to be yes (as many, many private citizens believe), then we're going to need those trial lawyers' help."
I read Overlawyered because I think it often makes valid points about "the high cost of the legal system." But the existence of some specious lawsuits doesn't automatically indict all plaintiff's lawyers. Sometimes they provide only avenue for righting a wrong. We ignore that potential at our peril.