 |
| “We’ve turned the law from
being the foundation of freedom into a tool of extortion that
causes people to live in fear of being sued,” Howard
contended. |
Posted
September 17, 2003
America’s Legal System Needs
a Dose of Common Sense, Howard Argues
The American legal system needs common
sense applied to it before the people’s growing cynicism
about it leads to social disintegration, according to Philip
K. Howard, founder of The
Common Good. “We need an overhaul of the legal philosophy
of the country to restore reliable law,” he said. “Distrust
of law has infected daily choices throughout society. Americans
no longer feel comfortable doing what’s right because they
don’t trust the law” to protect them from opportunistic
lawsuits. Howard, who has written two books on the problem, The
Death of Common Sense: How Law is Suffocating America and The
Collapse of the Common Good: How America’s Lawsuit Culture
Undermines our Freedom, spoke on “America’s
Lawsuit Culture: Is the Legal System Broken” at the Law
School Sept. 12 at the invitation of The
Federalist Society.
The vice chairman of Covington & Burling and a 1974 graduate
of the School of Law, Howard cited doctors’ and teachers’ fear
of lawsuits as inhibiting them from doing their jobs according
to their own professional discretion.
A survey of doctors showed that six out
of seven don’t trust
the law and are practicing defensively out of fear of malpractice
claims, he said. “They are afraid to use e-mail because
they fear having a written record,” said Howard. Teachers
will no longer touch upset children to console them for fear
of facing a “sexual touching” lawsuit. The seesaws
and jungle gyms built on America’s playgrounds under President
John F. Kennedy’s program to promote youth physical fitness
are now all preemptively removed to avoid the chance of lawsuits.
To suggest how far from sensible things
have gotten, he pointed to ubiquitous warning labels. Howard,
who collects examples of
stupid warnings, said this year’s winner was a label that
read, “Caution: Remove Baby Before Folding Stroller.” He
recalled how Law School Dean John Jeffries, a classmate of Howard’s,
once waggishly proposed that a generic universal warning be instituted: “Caution:
This product should be used by a person of ordinary intelligence.”
“Everything involves risk,” said Howard. “It
undermines the freedom of a society to allow such suits to go
forward.” He cited a British case in which a young man
dove into a lake where swimming was prohibited, broke his neck,
and then sued. A House of Lords opinion on the case said that
the world simply can’t be made completely safe and that
we don’t want the “dull, gray” society that
would result from such an effort.
“There is a paradox here,” Howard asserted. “The
rights our founding fathers gave us are rights against state
power. They limit government’s power over our free choices.
A lawsuit is the use of that state power by one citizen against
another.
“We’ve turned the law from being
the foundation of freedom into a tool of extortion that causes
people to live
in fear of being sued,” Howard contended.
“Americans believe they have a fair system of justice
because they think it’s neutral. Judges monitor the process
and juries decide,” Howard said. But that belief is now
eroding. As one step toward a remedy he called for judges to
be given more authority to act as gatekeepers over suits. “One
problem with juries is that they can’t decide that a case
should be thrown out,” he said.
“The solution is ‘radical’:
shift responsibility for deciding who can sue for what back
to judges and legislatures.”
Common Good is a nonpartisan advocacy
organization (board members include George McGovern and Newt
Gingrich) campaigning to influence
public opinion over what law should be, Howard explained. “The
enemy is this conception of individual rights. We’re saying
these are not about just one person’s rights. Is it about
a kid who fell off a seesaw or the millions of people who want
to play on them?”
Howard quoted Oliver Wendell Holmes’s remark that “laws
are prophecies of what judges will do,” and Justice Benjamin
Cardozo’s observation that “the purpose of law is
to make people comfortable doing what’s right.”
The fundamental problem, according to Howard, is that the value
judgments we make are generally not provable, strictly speaking,
but reflect our knowledge and experience, say as a doctor or
teacher, about the situation at hand.
“Lawyers are exploiting the ‘open season’ attitude,” Howard
said. “Individuals are using the system to get rich.”
Law professor Larry
Walker offered a
response to Howard’s
comments, first challenging the idea that the volume of contemporary
litigation is unusually high. Scholarly investigation of such
claims turned up court records in Accomack County, Virginia,
for example, that showed 230 lawsuits per 1,000 residents
in 1638, four times the modern litigation rate. Further, Walker
said, rule changes in 1983 and 1993 moved the line on judges’ control
over civil suits back and forth without seeming to affect the
problem. “How much is too much or too little?” he
asked. “How do we identify improvement? I’m agnostic
on the goal because I don’t know what good is.”
“It’s not the increase in the quantity
of litigation, it’s the distrust of law that needs to be
conquered,” Howard
answered. “A main problem is the judges’ own perception
of what their job is. They don’t want to do something they
fear could be overturned on appeal. Trial judges in America do
not believe they have the authority to say that a suit can’t
be brought. The system is dominated by fear.”
“We’re in effect letting juries set standards of
law and the problem with that is not that they’ll get it
wrong, but that they can’t make it binding.
“We need an authority fix. We need to give teachers the
authority to discipline their students, for example. We need
to restore the authority to make unprovable judgments that are
subject to accountability mechanisms. You don’t need lawyers
for this. We’re trying to restore the idea of the common
good.”
• Reported by M. Marshall