Drawing the Line June 22, 2004 CG Chair Philip K. Howard testified before the U.S. House Judiciary Committee
on June 22, in an oversight hearing on "Safeguarding Americans from a Legal Culture
of Fear: Approaches to Limiting Lawsuit Abuse."
Howard called for a "basic shift in approach to restore predictability to our
legal system" and said Congress should make clear to judges that it is their responsibility
to "draw the boundaries of reasonable dispute."
"There is a missing link in American justice--rulings on who can sue for what," Howard said. "Any legal system requires deliberate choices, binding on behalf
of society, of what is reasonable and what is not. . . . Judges and legislatures
have [the authority to make binding decisions]. Juries do not. The role of juries
in civil cases is to decide disputed facts, such as whether someone is lying,
not standards of conduct."
Howard was invited to testify before the Committee, along with Karen Harned,
executive director of the National Federation of Independent Business's Legal
Foundation, Victor Schwartz, general counsel for the American Tort Reform Association,
and Theodore Eisenberg, the Henry Allen Mark Professor of Law at Cornell University.
The hearing featured discussion on the Lawsuit Abuse Reduction Act (H.R. 4571),
recently introduced by Representative Lamar Smith of Texas. Among other things,
the Act would reinstate a provision of Rule 11 of the Federal Rules of Civil Procedure
that makes it mandatory for judges to sanction attorneys who file frivolous suits.
The Act would also bar plaintiff's attorneys from shopping for favorable jurisdictions
by requiring that a lawsuit be filed in the jurisdiction where the plaintiff lives
or was injured, or where the defendant has its principal place of business.
Howard emphasized the need for more fundamental changes to our legal system than
merely sanctioning lawyers who file frivolous suits; we must restore to judges
their essential and Constitutional authority to act as gatekeepers--to make decisions
that balance the interests of litigants with those of society as a whole.
"There's a lot of discussion about the need to deter frivolous lawsuits and excessive
claims," Howard said. "Fulfilling that task, however, requires judges to make
decisions of what's frivolous. Anytime there's an accident, it couldn't be easier
to come up with a theory of what someone might have done--there could have been
a warning, or more supervision, or a stronger lock on the door. Judges mustn't
be so reticent to use their common sense."
Click here to download the full text of Mr. Howard's Testimony. | 
