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City Journal Spring 2006.
Spring 2006
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Making Civil Justice Sane
Philip K. Howard

Judges should stop unreasonable lawsuits before they start.

In many ways, the tort reform movement has succeeded. Over half the states have damage limits, kangaroo courts no longer exist in Mississippi and Texas, and, thanks to the class action reform that Congress passed last year, some obscure county court can no longer bankrupt entire industries. Supreme Court rulings have limited punitive damages and charged federal judges to guard against “junk science” by dubious experts.

But a lawsuit culture still corrodes daily relations throughout society. Doctors practice defensive medicine to ward off patient lawsuits and hesitate to intercede against inept colleagues, fearful of years of litigation. Businesses won’t give job references. Teachers have lost control of the classroom—78 percent of middle and high school teachers surveyed recently reported that students had threatened them with lawsuits for violating their rights. Distrust of justice may be at a new low: only 16 percent of Americans said that they would trust the justice system if someone brought a baseless claim against them.

Hardest hit are activities that are optional. Fun, for example, is fraught with fear. Schools ban dodgeball and tag. Jungle gyms, diving boards, and seesaws seem relics of some past civilization. Meanwhile our children, rescued from the risks of roughhousing and accident, suffer from the far greater risk of obesity, now at epidemic proportions.

The direct costs of this approach to justice are large (about twice the percentage of the GDP than in other developed nations). But the indirect costs are debilitating, infecting daily dealings with distrust and defensiveness. What’s at stake is the functioning of society.

Last summer, Lord Hoffmann, a judge on Great Britain’s highest court, noted that the U.K. was the dream of every U.S. tort reformer—no punitive damages, limits on pain and suffering, no contingency fees, loser pays, no juries in most civil cases, and a trial bar with almost no political influence. Yet, he remarked, England increasingly suffered from the pathologies of what the British call the “compensation culture.” The problem, he argued, was that judges had come to view litigation merely as a way of resolving private disputes and no longer appreciated that the proliferation of lawsuits affects the behavior of everyone in society. If judges don’t act as gatekeepers, drawing the boundaries of claims on behalf of broader society, then the mere possibility of a lawsuit will end up “diverting resources from activities where they are most needed and . . . restricting the liberty of individuals to enjoy their lives in their own way.”

Lord Hoffmann put his finger on what’s missing in American justice: judges don’t exercise their discretion to protect against abusive or unreasonable claims. The goal of civil justice is not merely to provide a forum to resolve disputes but to provide legal guideposts defining right and wrong. Law is the foundation of freedom in part because people know where they stand—they have confidence that our system of law will enforce contracts and require someone who’s negligent to compensate the person injured. Law is supposed to protect the good as well as condemn the bad. Citizens in a free society should be confident that courts will affirmatively defend them if they act reasonably.

Today America’s civil justice system is not providing these guideposts of right and wrong. People believe, on the whole accurately, that any aggrieved person can haul another into court over an accident or disagreement and put his claim, in almost any amount, before a jury. Because one jury can’t bind the next, civil justice has become an ad hoc process, without meaningful guidelines or limits.

Restoring freedom in social interaction requires a basic shift in the goals of civil justice. Judges must see their role not as referees of a neutral dispute-resolution system but as guardians of reasonable choices, constantly making rulings that draw the boundaries of reasonable dispute.

An important decision by the Law Lords began pushing Britain back in this direction in 2003. The case at issue could have come from many courts in America. On a hot day in Cheshire, an 18-year-old named John Tomlinson went for a swim in the lake of a local park. Racing into the water, he dived too sharply and broke his neck on the sandy bottom. He was paralyzed for life.

Tomlinson sued the Cheshire County Council for not doing more to protect against the accident. The Council, he discovered, knew about the risk. Three or four near-drownings occurred every year. no swimming signs had been posted—and widely ignored—for over a decade. The popularity of the park, with over 160,000 visitors a 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 reeds were planted, Tomlinson had his accident. The Council should have acted sooner, his lawyer argued, to prevent “luring people into a deathtrap” and to protect against a “siren call strong enough to turn stout men’s minds.” Because the county obviously knew the danger, the lower court accepted this argument.

The Law Lords took the appeal and ordered the case dismissed. The lead opinion by Lord Hoffmann declared that whether a claim should be allowed hinged not just on whether an accident is foreseeable but “also the social value of the activity which gives rise to the risk.” Permitting Tomlinson’s claim, the Law Lords held, means that hundreds of thousands could no longer enjoy the park: “[T]here 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 effort 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,” Lord Hobhouse asked, “because some youths may climb them and fall?” Lord Scott added, “Of course there is some risk of accidents. . . . But that is no reason for imposing a grey and dull safety regime on everyone.”

The Tomlinson decision highlights the forgotten goal in American justice. Judges have forgotten that lawsuits concern not only the parties to the dispute but everyone in society. The mere possibility of a lawsuit changes people’s behavior. That’s why judges must draw boundaries as a matter of law.

Today in America, such a solution would be practically unthinkable. We look to the jury as our guarantee of fairness and see judges as mere neutral referees. The phrase “the right to sue” has magical powers—and the jury is an essential ingredient of that right. All the trial lawyers need to do is pound the table—“they’re trying to take away your right to sue”—and instantaneously reformers are on the defensive, muttering about the need to curb frivolous cases.

Access to courts is indeed a core value: even a frivolous claim requires someone with authority to decide that it’s frivolous. But the “right to sue” has come to mean not just getting inside the courthouse door but going all the way to the jury as the ultimate decision maker. Any other conception of justice, the trial lawyers tell us, would mean that the system is rigged. As leading trial lawyer Richard Scruggs put it: “I trust the jury system and I trust the American people and their common sense far more than the National Association of Manufacturers to protect the American public.”

The populist appeal of juries is easy to understand. The idea of the jury—a randomly picked group of citizens—seems like the model of American fairness. Former senator John Edwards, who made millions suing hospitals in the South, summarized the prevailing sentiment toward juries in a Newsweek essay, “Juries: ΩDemocracy in Action.≈ ” Its gist: freedom’s flag waves in the breeze, as jurors, summoned from all walks of life, come to do their civic duty. The vision is so powerful that we don’t look back to consider what the role of the jury is supposed to be.

But is civil justice supposed to be a kind of mini-election, where 12 (or six) voters decide, case by case, what’s right and wrong? “The basic moral principle, acknowledged by every legal system we know anything about,” Yale law professor Eugene Rostow once observed, “is that similar cases should be decided alike.” The rule of law—the very idea of the rule of law—is that it is supposed to set and apply standards of conduct evenly.

It is impossible to reconcile these two ideas. Under the “democracy in action” conception, each jury decides a case as it sees fit, whatever the verdict in similar prior cases. This model not only tolerates but encourages decisions that vary wildly from case to case. Fairness is defined largely by the neutrality of a randomly picked group of jurors, not consistency among similar cases.

If fairness were the only issue in a particular case, why not let the jury make the choice? Somebody has to decide. But litigation, as Lord Hoffmann observed, affects people not in the courtroom. Derek Bok, Harvard’s former law school dean and its once and future president, observed that lawsuits “often have their greatest effect on people who are neither parties to the litigation nor even aware that it is going on.” The news last year that someone received a large verdict in a sledding accident had the natural effect of causing other towns to bar winter sports from town property. No legislature or judge, however, made a decision that sledding is an unreasonable risk. Who represents the interests of the citizens who want to enjoy winter sports? One jury decides that an activity is safe; the next jury decides that it is not. What is a prudent person supposed to do?

The rule-of-law model, by contrast, aspires to guidance and predictability, to fairness to society as a whole, not just to the individual parties. Its main tools are statutes by legislatures and written rulings by judges. By setting boundaries that people can rely upon, the rule of law promotes the freedom to interact honestly and take reasonable risks.

But doesn’t the Constitution require juries to make such decisions? The answer is a qualified no. If the case turns on a question of law, rather than a question of fact, then the judge should make the final decision. In our constitutional framework, juries have the job of deciding disputed facts—who is telling the truth, say, or who ran the red light. But juries are not supposed to interpret the law—that’s the judge’s job. Many cases turn not on factual disputes but, as in the Tomlinson case, on whether the conduct at issue was reasonable. This allocation of responsibility between judge and jury has distinguished Anglo-American jurisprudence for centuries. To quote the landmark Jacobean common law treatise by Sir Edward Coke: “Judges do not answer questions of fact . . . [and] jurors do not answer questions of law.”

The Seventh Amendment, though hardly a model of clarity, defines the jury right by incorporating common law practice, and it explicitly invokes the fact-law distinction: “In suits at common law . . . the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined . . . than according to the rules of the common law.” In the debates over ratification of the Constitution, future chief justice John Marshall stated categorically: “What is the object of a jury trial? To inform the Court of the facts.”

Popular confusion over the jury’s role probably stems from the distinction between civil and criminal cases. Under the Sixth Amendment, only a jury has the power to convict. Juries in a criminal case are our protection against abuses of state power. But a private lawsuit, we seem to have forgotten, is a use of state power against another private citizen. Filing a lawsuit is just like indicting someone—it’s just an indictment for money. Without the protection of a disinterested prosecutor and a grand jury, the defendant needs the protection of the judge to decide whether the claim has legal merit, leaving the jury to decide disputed facts.

The use of a jury in a particular civil lawsuit should depend on whether the case hinges on a factual dispute—who’s telling the truth, for instance. But in other cases, the judge should decide. If the claim implicates the functioning of society—say, a claim that a seesaw or jungle gym is unreasonably risky—juries can resolve specific factual disputes (using what are known as special interrogatories), but the judge should then rule as a matter of law whether the activity constitutes an unreasonable risk.

Cases that turn on acceptable standards of medical care almost always have broader social ramifications—for example, whether it’s appropriate for a doctor to prescribe aspirin for a bad headache and then to wait and see how the patient progresses. Once in a while, that headache will be a tumor. Is the doctor liable for not immediately ordering a battery of tests? If so, then doctors will continue to squander billions on unnecessary procedures, driving up costs and thereby causing others to go without care altogether. To avoid this result, the legal system must draw boundaries of reasonable risk. Doctors need to know what’s expected of them.

Prominent trial lawyers whom I debate typically argue that the jury system is our best form of regulation. But in that case, where does the doctor go to find the rule? It doesn’t exist, because the “regulation” varies from jury to jury. That’s why Oliver Wendell Holmes, Jr., perhaps our most eminent common law thinker, believed that what constitutes reasonable conduct was a question requiring a ruling of law: “Negligence . . . [is] a standard of conduct, a standard which we hold the parties bound to know beforehand . . . not a matter dependent upon the whim of the particular jury or the eloquence of the particular advocate.”

California Supreme Court chief justice Roger Traynor, a liberal innovator, emphasized the need for judges to declare rulings even in the simplest accident and not to leave standards of reasonableness to the “oscillating verdict of juries.” When a woman hit her head on a slanting ceiling while walking down a staircase, Traynor insisted that the judge determine whether the ceiling was an unreasonable hazard or whether “the danger is so apparent that visitors could reasonably be expected to notice it.”

In commercial law, where the focus is predictability and efficiency, it is a well-established principle that judges, not juries, have the obligation to interpret the standard language of contracts. The Uniform Commercial Code was a legislative effort to achieve consistency. Its core concepts—including ones that look very much like those of tort, such as reasonableness—are often decided as a matter of law. America’s system of commercial law, generally considered the most consistent and predictable in the world, is a bedrock of America’s economic strength.

Just imagine the mischief if parties to a commercial deal could make up theories about the unfairness of a particular contract. That’s what’s happened in social relations in America.

The rights that our founders gave us were rights against state power. The modern conception of the “right to sue” allows a claimant, more or less at his whim, to threaten you with state power. The jury may uphold your conduct, or it may not. But there’s no one on behalf of broader society who sees it as his job to keep claims within knowable bounds. This is not the rule of law, with predictable standards and guidelines, but something closer to the opposite.

Judges today give lip service to the distinction between fact and law, but, as one scholar put it, there’s “a strong tendency to let all issues go to the jury without discriminating among them.” Letting the jury decide is easy—it “reduces judicial effort and the risk of reversal.” Prior to the 1960s, judges didn’t need to keep tight reins on hot-coffee claims or multimillion-dollar personal-injury lawsuits. There weren’t any. People didn’t have the idea that they could use litigation as a lottery.

In the 1960s, legal theorists reconceived civil justice as a neutral process, telling judges that their first duty was to avoid asserting judicial values. Who knows what bias lurks in the heart of the judge? Appellate courts admonished judges not to dismiss any claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in his support of his claim which would entitle him to recover.” The standard is almost like that required for a criminal conviction: judges won’t dismiss a claim (or, for that matter, a bogus defense) unless there is virtually no room for argument. Since most accident cases involve interpreting standards of conduct in factual circumstances—what are known as mixed questions of law and fact—judges believe that their main job is to read legal instructions to the jury, and leave it to the jury to apply the law in each case instead of applying it themselves.

The effect was not to achieve the ostensible goal of neutrality, however, but to leave a vacuum that has been filled by an ever-broadening range of private legal claims and threats. Lawyers began pushing the envelope, and they haven’t stopped.

Like the rest of us, judges have witnessed this vast expansion of legal exposure, and many don’t like it. But they feel powerless to do anything about it. Making a legal ruling based on broader social effects of a lawsuit—say, whether seesaws are a reasonable risk—is inconceivable to most judges. A few years ago, when debating the judge in the McDonald’s hot-coffee case, I suggested that the reasonableness of selling hot coffee from a takeout window should be decided as a matter of law. His response perfectly captured current judicial orthodoxy: “Who am I to judge?”

But what about judicial activism? In this same period, judges around America were taking control of schools and prisons and causing riots when they ordered children bussed to different neighborhoods. Judges felt just fine making rulings as a matter of law that effectively preempted the legislature. How can we come to terms with this Jekyll and Hyde performance?

The common thread is a judicial preoccupation with the plight of the individual, coupled with a distrust of business, professionals, and democracy itself. The jurisprudence of our era is not, in fact, based on a principle of neutrality but on an active antagonism to the establishment. Someone feels aggrieved? Let him sue for the moon. The Kansas City school board isn’t doing a good job educating the students? Let the court take over the schools. Courts in the 1960s embraced a judicial philosophy of championing anyone claiming victimhood.

What judges forgot in their preoccupation with fairness to the particular claimant is that the impact of lawsuits goes beyond the particular verdict and affects society as a whole. An overly activist judicial approach to social issues preempts the legislature and distorts public priorities in areas not even considered by the judge. A passive judicial approach to private lawsuits, leaving most decisions to the jury, creates an open season for anyone who wants to use state power to threaten another person. Social policy in these areas ends up being made by lawyers like Dickie Scruggs and whoever else comes up with a theory of liability.

Rulings by the Supreme Court in the past ten years suggest that it is pushing judges in the same direction as the British Law Lords. The Court has repeatedly instructed judges to assert their power in a wide variety of civil cases, with the goal of restoring legal consistency.

Several important decisions exhort judges to use summary judgment to make rulings as a matter of law. In Celotex v. Catrett, a wrongful-death asbestos case, the Court starkly shifted direction from the presumption that judges should avoid summary dismissal if there is a “scintilla of evidence”: “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of . . . rules . . . designed Ωto secure the just, speedy and inexpensive determination of every action.’ ”

Justice Souter, in Markman v. Westview Instruments, explained the importance of judges making rulings of law to achieve consistency in patent cases. A legal system that creates a “zone of uncertainty,” Souter cautioned, “would discourage invention.”

In Cooper v. Leatherman, the Court held that judges should decide the upper limits of punitive damages as a matter of law. “Requiring the application of law, rather than a decision-maker’s caprice, does more than simply provide citizens notice of what actions may subject them to punishment; it also helps to assure the uniform general treatment of similarly situated persons that is the essence of law itself,” the Court declared, quoting an earlier opinion of Justice Breyer. Going still further, in State Farm v. Campbell, the Court itself took responsibility for mandating a limit on claims for punitive damages, to bar plaintiffs from making outlandish claims to extort settlements. “Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose,” Justice Kennedy wrote for the Court.

In Daubert v. Merrell Dow, the Court shifted the responsibility of what constitutes credible expert testimony from jury to judge. On the authority of Daubert, a federal judge in Texas, Janis Jack, recently took it upon herself to investigate the validity of more than 9,000 silicosis claims. She found that the diagnoses were a sham and that the litigation had basically been mass-produced by lawyers who would advertise for potential plaintiffs, invite them to a mobile X-ray truck, and then pay doctors to sign their names on preprinted diagnoses. What was shocking about Judge Jack’s 250-page opinion was not the details of this scheme—anyone associated with asbestos litigation has seen the scam in action for years—but that a judge actually took the authority to declare that the emperor had no clothes. Until her decision, judges overseeing several hundred thousand cases had basically taken the position that the plaintiffs had the right to submit these bogus claims to the jury.

Of course, legislatures, not judges, have the ultimate authority for drawing the boundaries of law in our society. So far, though, Congress and the statehouses have treated civil justice as a fight between special interests. Even when passing specific tort reforms, they have ducked responsibility for sorting out the underlying systemic flaws. While legislators cannot crowd into the courtroom to make rulings of reasonableness in a particular case, they can certainly direct judges to take that responsibility, and they can provide appropriate goals and guidelines. Judges need such help: after four decades of letting trial lawyers argue almost anything, they have no idea how to draw the required legal boundaries.

Legislators should pass laws giving judges the responsibility to safeguard our freedom to act reasonably. In November 2005, the House of Lords introduced a bill on civil liability that, among other changes, would make the Tomlinson ruling law, granting broad authority to judges to consider whether allowing a claim might “discourage persons from undertaking . . . a desirable activity.” Congress and individual states could enact a similar bill directing judges to act as gatekeepers of the reasonableness of claims, perhaps along these lines: “Judges shall take the responsibility to draw the boundaries of reasonable dispute as a matter of law, applying common law principles and statutory guidelines. In making these rulings, judges shall consider whether allowing a claim or defense to proceed to the jury, and the exposure of others in society to similar claims, might undermine the ability of citizens to engage in reasonable or productive activities.”

Congress has before it a number of bills that would accomplish this result in specific areas. In the wake of Hurricane Katrina, for example, Senator John Cornyn (R, TX) introduced a bill to shore up the toothless Volunteer Protection Act by giving judges the responsibility to decide as a matter of law whether claims fall within the scope of the act. Arkansas governor Mike Huckabee, concerned about the chilling of children’s recreation and the crisis of obesity, is considering proposals shifting responsibility to judges to decide whether a particular activity is unreasonably risky.

Some areas of society are too far gone. Health care is in such disarray, and involves such complexity, that a broad coalition, including patient advocates, has endorsed the idea of a new system of health courts. Although the idea of an expert court may seem radical, America has a long tradition of special courts in areas needing specific expertise—admiralty courts, tax courts, drug courts, bankruptcy courts, and administrative tribunals in areas ranging from workers’ compensation to vaccine liability. In the Senate, Michael Enzi (R, WY) and Max Baucus (D, MT) have introduced a bipartisan bill to authorize and fund pilot health courts, with hearings planned later this term.

Restoring reliability to civil justice is a radical idea, but that just shows how far we’ve fallen. Why are there frivolous and extortive cases? Because judges don’t think they have the authority to decide what’s frivolous. Why are daily choices riddled with legal fear? Because judges won’t draw the boundaries of reasonableness.

Probably the hardest part for judges will be the idea that they have an important role as protectors of society’s values. They must understand that if a claim will affect the conduct of people not in the courtroom, they have the duty to assert the reasonable values of society. The hardest part of this reform for the rest of us, in this age of distrust, is that we don’t trust judges. And almost certainly judges will make a certain number of bad rulings. But at least the rulings will be in writing for all to see and can be appealed and, if really stupid, overturned by the legislature. But having no rulings—letting unreasonable claims go to the jury—is like having a perfect record of bad rulings. Most people will act as if they might be liable. Why take the risk?

The opponents of such a reform are not hard to identify. The American Bar Association recently passed a broad resolution condemning special health courts, even pilot projects, declaring that “it is against ABA policy related to juries.” Other factors may influence their position as well. More than 60 percent of the total cost of the malpractice system is consumed by lawyers’ fees and administrative costs. The lawyers portray themselves as a kind of Robin Hood for injured patients, but the modern twist is that they keep most of the money. This trial-lawyer wealth comes in handy politically and, indeed, has become an opiate to one of our political parties.

The lawyers’ most powerful weapon, however, is their rhetoric. No one wants to give up the “right to sue.” What the public needs to understand is that the right to sue has no substance without the rule of law. Rights without law do not protect freedom but undermine it—causing disorder in schools, contributing to unaffordable health care, and putting a pall over life’s simple pleasures. Let the lawyers, increasingly isolated by their self-interest, talk about the right to sue. We should talk about the rule of law and how it should support the functioning of a free society.

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