Is the Legal System Broken? The New York Times, The Washington Post, December 26, 2002 Click here download a pdf file of the piece exactly as it appeared.
Law is an essential pillar of freedom because it sets boundaries of right and
wrong. With law as a reliable guide, people can make free choices without fearing
retribution or abuse.
But standards today are changeable from jury to jury. With uncertain legal boundaries,
it seems that anyone can sue for almost anything. As a result, many Americans
now go through the day looking over their shoulders instead of accomplishing their
goals.
Hospitals, schools and other institutions are dragged down because the people
within them no longer feel free to use their best judgment to get the job done.
- Doctors order unnecessary tests and procedures because they fear being sued.
Some estimates of "defensive medicine" exceed $100 billion, enough to provide
healthcare to the 41 million uninsured Americans.
- Many teachers have trouble maintaining order in their classrooms because of legal
concerns. Some teachers, fearful of a possible claim, are afraid to put an arm
around a crying second-grader.
- Playgrounds are stripped of seesaws and slides. Some school districts have banned
the game of tag. Others have cancelled recess altogether.
Legal fear has become a defining characteristic of American culture. Employers
refuse to give honest references. Ridiculous warning labels are plastered on ordinary
products: "Remove Baby before Folding Stroller."
Common sense is an early casualty, but not the only one. Fairness suffers as
well. Lottery-like verdicts provide riches to a few to the detriment of many,
sometimes leaving no funds to compensate true victims.
The legal system is broken. Law is supposed to make people feel comfortable doing
what's reasonable, and nervous doing what's not. Today Americans feel nervous
doing almost anything.
Reform is desperately needed but must go much further than capping excessive
awards. Reform must restore reliability to law. That requires judges and legislatures
to take back the authority, abandoned in the 1960s, to make deliberate judgments
of who can sue for what. Otherwise, people who don't know where they stand, and
fear replaces freedom.
Common Good is a new bipartisan coalition that seeks to restore judgment and
responsibility to our daily choices. This restoration requires an overhaul of
America's modern litigation philosophy. Joining us in this effort are distinguished
leaders from many segments of society, including former leaders of Congress Alan
K. Simpson, Paul Simon and Newt Gingrich; former Attorneys General Griffin Bell
and Richard Thornburgh; and other leaders of academia and the bar, such a Eric
Holder, Diane Ravitch and John Silber.
We hope you will join with us.
Philip K. Howard, Chair
Tom Kean, George McGovern
Co-chairs, Advisory board | 
