6Restore Reliability to Lawsuits
Lawsuits can be too easily used as a tool of extortion. The harm is much greater than occasional crazy verdicts. Fear of lawsuits has undermined Americans’ freedom to do what’s right. Across America, in schools, hospitals, workplaces, even playgrounds, reasonable freedoms have been replaced by pervasive defensiveness. For example, it is commonplace that:
employers no longer give honest job references or work evaluations;
teachers no longer comfort a crying child;
doctors practice “defensive medicine,” raising costs and compromising patient safety;
companies don’t take chances on new products;
children aren’t allowed to play without adult supervision;
college administrators kowtow to any purported grievance or sensitivity;
warnings are everywhere, blanketing products and creating white noise on TV and radio commercials.
Justice is supposed to enhance our freedom, not inject fear in ordinary daily interactions. Defensiveness in daily social relations has occurred because American justice is missing one essential element: There are no predictable boundaries on who can sue for what. Almost any dispute or accident—losing a job, falling on a playground, or a sick person getting sicker—can turn into a lawsuit.
Nor are there predictable limits on how many damages plaintiffs can seek. Almost any dispute can put free citizens at risk, however remote, for everything they own. At the end of a lawsuit, after years of litigation, American justice will generally get to a sensible result. But most people will do almost anything to avoid the risk, cost, and emotional turmoil of a lawsuit.
Restoring trust in justice requires predictable legal boundaries of who can sue for what. New statutes should define the limits of claims and authorize judges to make legal rulings defining reasonable conduct as a matter of law. For example:
To liberate children to engage in ordinary play, judges must prevent claims over, for example, the inevitable accidents when children are allowed to play without supervision.
Certain areas of society, such as healthcare delivery, require technical expertise and should be adjudicated in specialized courts. Their legal rulings can provide authoritative guidance and restore confidence that justice will reliably identify bad care.
Because fear of lawsuits could deter recovery from COVID-19, claims should be limited to intentional or reckless conduct.
Restoring reliable legal boundaries to lawsuits will dramatically enhance freedom in personal interactions in schools, hospitals, the workplace, and communities. Teachers will feel free to maintain order in the classroom, doctors will no longer waste billions in “defensive medicine,” employers and employees will have the benefit of candid interactions, and parents will feel free to give children the autonomy they need to grow into strong and resourceful adults.
Defenders of the current system refer to a “right to sue.” But lawsuits are not an act of freedom, like, say, free speech. Lawsuits are a use of state power against another free citizen—just like indicting someone for money. We would never tolerate a prosecutor seeking the death penalty for a misdemeanor. So why do we tolerate someone suing for the moon with no legal gatekeeper deciding whether it’s a reasonable claim?
The role of juries should be to decide disputed factual issues particular to that case, such as who ran the red light or who is telling the truth—not to decide standards of care for all of society. Because jury verdicts are not binding on the next jury—unlike legal rulings by a judge, jury verdicts have no precedential power—they cannot set reliable standards all of society should be bound by. That’s why American justice lacks the predictability that is essential to the rule of law.
The proof is in the pudding: Americans no longer feel free in many daily settings. The solution is not merely tort reform, which limits certain damages. The solution is to restore the job of judges, as in other civilized countries, to protect common sense activities by serving as gatekeepers to keep claims within reasonable bounds.