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"When Judges Won't Judge" Sent to 4,000 Judges Across America Philip K. Howard
Wall Street Journal, October 22, 2003
-Former U.S. Attorney General Griffin Bell and former U.S. Senator Alan K. Simpson,
both CG Advisory Board Members, sent Philip K. Howard's Wall Street Journal op-ed,
"When Judges Won't Judge," to 4,000 judges across the country.
The editorial:
America's lawsuit culture is transforming our society, but there's been little
focus on why litigation spun out of control over the last 30 years. People never
used to sue for hot coffee spills, or for getting fat. There was a time, in the
1970s, when a million-dollar verdict for an accident was headline news. Now people
sue for billions. What changed?
Obvious villains are greedy lawyers and a culture that has lost its sense of
personal responsibility. But there's a chicken that laid those eggs -- the American
judiciary abdicated its role as gatekeeper in the 1960s, and started letting anyone
sue for almost anything. Embarrassed by their complacency on racial and gender
discrimination, the white males on the bench embraced a new philosophy of judging
-- instead of a paternalistic model (most famously symbolized by Justice Potter
Stewart's line "I know it when I see it"), judges would be merely referees in
a neutral process. Instead of neutrality, however, they left a vacuum. At first
gradually, and now at a blinding pace, that vacuum has been filled with new theories
and escalating claims by those who see justice as an entrepreneurial activity.
Judges today consider civil justice as a private dispute, rather than a use of
state power. They can't imagine on what basis they should have the authority to
limit claims. Just let the two litigants slug it out in front of the jury. As
one judge suggested to me, "Who am I to judge?"
But there's a victim that judges have forgotten. The reason judges must take
the responsibility of deciding whether claims are excessive, as a recent decision
from the House of Lords in England reminds us, is not because of fairness between
the litigants, but because lawsuits affect all of society.
The case before the House of Lords, the equivalent of our Supreme Court, could
have been picked from any court in America. On a hot day in the Cheshire region
of England, an 18-year-old named John Tomlinson went for a swim in the lake at
Brereton Heath Country Park. Racing into the water from the beach, he dived too
sharply and broke his neck on the sandy bottom. He was paralyzed for life.
Mr. Tomlinson sued the Cheshire County Council for not doing more to protect
against accidents. The Council, he discovered, knew about the risks -- there were
three or four near-drownings every year. "No Swimming" signs had been posted,
and widely ignored, for over a decade. The popularity of the park -- more than
160,000 visitors every year -- made effective policing almost impossible. Fearful
of liability, the Cheshire Council had decided to close off the lake by dumping
mud on the beaches and planting reeds.
But before the work was done, Mr. Tomlinson had his accident. The Cheshire Council
should have acted sooner, as his lawyer argued, to prevent "luring people into
a death trap" and to protect against a "siren song strong enough to turn stout
men's hearts." The lower courts accepted this argument because the County obviously
knew the danger.
The Law Lords took the appeal, and, this past August, ordered the case to be
dismissed. Whether a claim should be allowed, they held, hinged not just on whether
an accident is foreseeable but "also the social value of the activity which gave
rise to the risk."
Permitting Mr. Tomlinson's claim, the Lords held, means that hundreds of thousands
of people would not be able to enjoy the park: "There is an important question
of freedom at stake. It is unjust that the harmless recreation of responsible
parents and children with buckets and spades on the beaches should be prohibited
in order to comply with what is thought to be a legal duty."
The County's ineffective efforts to prevent swimming, instead of establishing
negligence, the Lords held, demonstrated how a misguided conception of justice
hurts the public. "Does the law require that all trees be cut down," one Lord
asked, "because some youths may climb them and fall?" "Of course there is some
risk of accidents . . . but that is no reason for imposing a gray and dull safety
regime on everyone."
This is the missing link in American justice. Judges have lost sight of the idea
that lawsuits concern not only the particular parties to the dispute, but everyone
in society. The mere possibility of a lawsuit changes people's behavior. That's
why judges must act as gatekeepers, deciding who can sue for what.
Law is supposed to uphold social norms of right conduct. Oliver Wendell Holmes
Jr. said that this was "the first requirement of a sound body of law." By making
people potentially liable for their negligence, law provides incentives for reasonable
conduct. But the converse is also true. Allow lawsuits against reasonable behavior,
and pretty soon people no longer feel free to act reasonably.
Welcome to America. Mud and reeds have been dumped on natural and necessary human
activities throughout American society. Playgrounds have been stripped of all
physically active equipment, like monkey bars, with the effect, among others,
of contributing to a crisis in childhood obesity. Health-care costs are skyrocketing,
in part because paranoid doctors are in the habit of ordering unnecessary tests
to provide a possible defense in case there's a lawsuit. Because of fear of legal
claims, teachers can't put their arm around a crying child.
Lawsuits are easy. Whenever anything goes wrong, it's easy to come up with a
theory of what might have been done differently. There could have been a warning.
There could have been more supervision of the playground. The doctor could have
ordered an MRI for the headache, just to make sure. Exposing people to liability
against the standard of hindsight, however, creates not a safer world but one
in which people simply avoid socially useful activities. Obstetricians quit. Seesaws
disappear. Businesses stop giving references. The City of New York did, in fact,
cut the limbs off trees near playgrounds so children would not be tempted to climb
them.
All life's activities involve risk, and therefore the inevitability of accident
and disagreement. The role of law is not to provide a consolation forum for those
who have felt the misfortune of risk, but to support the freedom of all citizens
to make reasonable choices, including taking reasonable risks. That requires judges,
whenever someone makes a claim, to balance the seriousness of the risk against
the social utility of the claim. Those rulings are the building blocks of our
common law system, which, the English Law Lords recently reminded us, " is just
the formal statement of the results and conclusions of the common sense of mankind."
Judicial activism has a bad name. It's one thing for judges to impose affirmative
legislative mandates, like forced busing, but far more disruptive for judges to
sit on their hands and let private litigants sue for the moon. Want to fix the
legal system? Shine the spotlight on the judges.
Mr. Howard, chairman of Common Good, a legal reform coalition, is author of "The
Collapse of the Common Good" (Ballantine Books, 2002). | |
