No Longer Judging; Some Have Abdicated Gatekeepers' Role The Daily Oklahoman, November 2, 2003 In a recent column in The Wall Street Journal, Philip K. Howard writes of a young
man in Britain who became paralyzed after diving too sharply into a lake and breaking
his neck. The 18-year-old sued the town council for not doing more to protect
against accidents in the popular park. (See "When Judges Won't Judge," by Philip K. Howard.)
At the time of the accident, the council was in the process of closing the lake,
whose "No Swimming" signs had been ignored for years. The young man's attorney
argued that the council should have acted sooner. The lower courts accepted that
argument.
But the House of Lords, which is the equivalent of our U.S. Supreme Court, ordered
the case be dismissed. They ruled that permitting the man's claim would mean hundreds
of thousands of people wouldn't be able to enjoy the park.
"There is an important question of freedom at stake," the Lords wrote. "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."
They also said the county's efforts to prevent swimming, while ineffective, showed
how a misguided conception of justice hurts the public.
"Does the law require that all trees be cut down because some youths may climb
them and fall?" one Lord asked. "Of course there is some risk of accidents ...
but that is no reason for imposing a gray and dull safety regime on everyone."
Howard, chairman of the legal reform coalition Common Good, uses this case as
an example of judges actually judging -- something he says is happening far too
infrequently in the United States. Beginning in the 1960s, he argues, the American
judiciary "abdicated its role as gatekeeper ... and started letting anyone sue
for almost anything."
While Howard feels greedy lawyers and a culture "that has lost its sense of personal
responsibility" deserve some of the blame for our litigious times, he also blames
judges, whom he says "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."
What judges have forgotten, he says, is that lawsuits affect all of society,
not just the individual parties, and that the simple possibility of a lawsuit
changes how people behave. He also notes that all our daily activities involve
some risks, and as a result there is a chance for accidents or disagreements.
"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," he writes. "That requires judges,
whenever someone makes a claim, to balance the seriousness of the risk against
the social utility of the claim."
Food for thought.
Click here to read "When Judges Won't Judge." | 
